Bhaskar Bhattacharya, J. - (1.) THIS first appeal is at the instance of the plaintiff in a suit for declaration and injunction and is directed against the judgment and decree dated 28th February, 2001 passed by the learned Judge Eighth Bench, City Civil Court at Calcutta in Title Suit No. 1987 of 1993 thereby dismissing the suit.
(2.) BEING dissatisfied, the plaintiff has come up with the present first appeal The appellant before us filed in the City Civil Court at Calcutta a suit being Title Suit No. 1987 of 1993 thereby praying for declaration that the deed of conveyance dated 24th July, 1992, purported to have been executed by and between Hiran Bala Paul, his mother and the defendant No. 1, his brother, was illegal, invalid, void, ab initio and not enforceable in law and for permanent injunction restraining the defendant No. 1 from dealing with the suit property as sole and exclusive owner of the property by virtue of the said deed dated 24th July, 1992. The plaintiff also prayed for permanent injunction restraining the defendant No. 2, the father of the plaintiff and the defendant No. 1, from exercising any power of managing the said property by virtue of any power granted by the defendant No. 1 to defendant No. 2.
(3.) THE case made out by the plaintiff may be summed up thus: (a) The plaintiff is one of the co -sharers of premises N0.6A, Iswar Mitra Lane, Calcutta - 6 and the defendants are also the co -sharers and the co -owners of the said premises. One Smt. Hiran Bala Paul, the mother of the plaintiff as well as the defendant No. 1 and the wife of the defendant No. 2, was the trustee of the said premises. One Smt Anga Devi Paul, since deceased, the maternal grandmother of the plaintiff and the defendant No. 1, was the original owner of the property who executed a deed of trust, by which the plaintiff is one of the ultimate beneficiaries and the defendants are the other beneficiaries, (b) The defendants had no right to deal with the suit property defying the beneficial interest or right of ownership of the plaintiff in the suit premises. After the death of Hiran Bala Paul, as per the provision of the deed of trust executed by the sitter of the trust, the plaintiff has become the joint owner of the suit property being 6A. Iswar Mitra Lane. (c)The plaintiff filed a suit in the City Civil Court at Calcutta being Title Suit No. 623 of 1993 thereby praying for declaration that the plaintiff was the joint owner having a share in the suit premises and for temporary injunction restraining the defendants from selling or transferring the suit property till the disposal of the suit. In the said suit, the plaintiff also filed an application for injunction wherein the defendant No. 2 appeared and filed objection stating that the deed of trust created by Anga Devi Paul made a provision to give a consent in writing to the trustee, namely, Hiran Bala Paul, to transfer an assign the premises with the consent of the defendant No. 2 and in pursuance of the clause 5 of the said deed of trust, the trustee, namely, Hiran Bala Paul with the consent in writing of her husband sold and transferred the said premises to the defendant No. 1 by a registered deed of conveyance dated 24th July, 1992 and subsequently, the defendant No. 1 executed a deed of general Power of Attorney in favour of his father for the purpose of realising rent from the tenants. (d) According to the deed of trust dated 4th November, 1951, Hiran Bala Paul had life interest and after her death, the property would devolve equally on her husband and her male descendants and the trust would come to an end. Thus, on the death of Hiran Bala Paul and her husband, the plaintiff and the defendant No. 1 would become the absolute owners of the property. (e) By a letter dated 6th March, 1984, which appeared to have signed on 23rd March, 1984, Hiran Bala Paul informed that it was impossible for her to work as trustee and as such, in terms of clause 7 of the deed of trust she refused to act as a trustee any further and relinquished the office. (f) After the issue of the said letter, by a further letter dated 2nd April, 1984 addressed by the defendant No. 2 to the plaintiff and the defendant No. 1, the defendant No. 2 confirmed the same and continued to act as the sole trustee under the provision of the deed of trust. (g) After the relinquishment of the power as a trustee, Hiran Bala Paul had no right to sell or transfer the property to any person. (h) The alleged deed of conveyance dated 24th July, 1992 was the result of a collusion and connivance by and between the two defendants and the said Hiran Bala Paul and the deed was never executed for valuable consideration. (i) No consideration for the said property had, in fact, passed between the parties and the defendant No. 1 was not solvent to pay the alleged amount of consideration made in the deed of conveyance. Thus, the said sale -deed was illegal, invalid and was not binding upon the plaintiff.;