Bagchi, J. - (1.) The Plaintiff, Tulsibala Dasi, is the absolute owner of premises No. 104/12 Gopal Lal Tagore Road, Baranagar, District 24 -Parganas. That property at one time was jointly owned in equal shares by the Plaintiff and her sister Ushabala Dasi, who died on March 2, 1948, leaving a Will dated September 27, 1947, disposing thereunder in favour of the Plaintiff, her undivided half share in the premises aforesaid. That Will was probated by the executor Ganesh Chandra Boral, who thereafter delivered possession of the bequeathed share of the premises to the Plaintiff. Thus, the Plaintiff became the full owner in possession of the entire premises in her absolute right. In the plaint she alleged, inter alia, that she was an illiterate pardanashin woman of weak intellect and was unable to transact business. The Defendant -Appellant Basanabala Majumdar alias Basana Rani Majumdar alias Basanabala Dey Hazra's natural father Bhubaneswar Dey Hazra was the paramour of the Plaintiff's sister Ushabala. Bhubaneswar Dey Hazra, the Defendant No. 2, as alleged in the plaint, had great influence and dominion over the Plaintiff after the death of Ushabala. Sometime in February 1949, when the Plaintiff was in a bad state of her health, Bhubaneswar. i.e. Defendant No. 2, impressed upon the Plaintiff that it would be necessary for her to execute and register a document in favour of Bhubaneswar for the purpose of management of the property -in suit, i.e. the premises No. 104/12 Gopal Lal Tagore Road. Taking advantage of the Plaintiff's situation Bhubaneswar induced her to execute a document as desired by him purporting to be a power of attorney. The Plaintiff, knowing it to be a power of attorney, executed the said deed as represented to her by Bhubaneswar Hazra. She had no independent legal advice in the matter and Bhubaneswar Dey Hazra did everything in the matter of preparation, execution and registration of the impugned document without any reference to the Plaintiff. The Plaintiff, as alleged, being an illiterate pardanashin woman, did not at all understand what the document was for, except that it was a power of attorney as represented to her by the said Bhubaneswar Dey Hazra. The document was never explained to the Plaintiff and she executed the same under the influence, dominion -and dictation of Bhubaneswar Dey Hazra. In the middle of November' 1951, the Plaintiff wanted to raise a loan on the security of the house, which is the property -in -suit and then came to know for the first time from the certified copy of the impugned document that the document which Was purported to be a power of attorney was really a deed of settlement, by which the Plaintiff had allegedly conveyed the property -in -suit, i.e. the premises mentioned above by way of settlement in perpetuity unto the Defendant No. 1 Basanabala Dey Hazra absolutely on certain terms, reserving, to herself only a life estate in such property. Basanabala, Defendant No. 1, was impleaded as a minor in the suit, represented by her father and natural guardian Bhubaneswar Dey Hazra. During the pendency of the suit Basanabala attained majority (vide Order No. 19, dated June 1, 1953, in T.S. No. 155/55, Fifth Court, Subordinate Judge, Alipore). The Plaintiff alleged that Bhubaneswar Dey Hazra abusing the confidence and trust reposed on him by the Plaintiff and taking advantage of her illiteracy, ill health, weak intellect and his influence and dominion over the Plaintiff, had fraudulently obtained from the Plaintiff a deed of settlement of the property -in -suit in favour of his minor daughter, Defendant No. 1 Basanabala, by representing to the Plaintiff that the document was a power of attorney. She asserted in the plaint that she was never fond of Basanabala arid that never brought up her as her own daughter and that the Plaintiff's sister late Ushabala had never instructed the Plaintiff to make provision for Basanabala. The document impugned by the Plaintiff, as alleged by the Plaintiff, was brought about by Bhubaneswar Dey Hazra upon fraud, misrepresentation made to and exercise of undue influence and dominion over the Plaintiff in order to gain his selfish ends. The Plaintiff personally requested. Bhubaneswar to have the document cancelled to which Bhubaneswar did not listen. On December 3, 1951, a pleader's notice was sent per ' registered post to the address of Bhubaneswar, in which the document was challenged, as invalid and void. Bhubaneswar gave his reply to the pleader's notice by a Solicitor's letter and correspondence then passed between the lawyers of the parties. The Plaintiff asserted that the deed of settlement was invalid, illegal, void and inoperative document and was not binding upon the Plaintiff. She asserted that the document did not affect in any way the Plaintiff's right, title and interest in the entire property -in -suit. She prayed for a decree upon a declaration that the alleged deed of settlement dated February 16, 1949, was invalid, illegal, void and inoperative and not binding upon the Plaintiff and that the Plaintiff was the absolute owner of the property -in -suit and for other incidental reliefs. On May 19, 1952, Kumari Basanabala Dey Hazra was impleaded as minor represented by her father and natural guardian. Bhubaneswar Dey Hazra filed a written statement. By a petition filed on May 22, 1953 (vide Order No. 18), the Plaintiff prayed for amendment of the plaint by adding Bhubaneswar Dey Hazra as Defendant No. 2 and for describing minor Basanabala as major. On June 1, 1953 (vide Order No 19) the amendments, as prayed for, were allowed. So, minor Basanabala, who filed written statement on May 19, 1952, came in the record as major on and from June 1, 1953. Summons on Defendant No. 2 could not be served and was ordered to be served under Order 5, Rule 20 of the Code of Civil Procedure. The summons on Defendant No. 2 Bhubaneswar Dey Hazra was, however, served under Order 5, Rule 20 of the Code of Civil Procedure, but he did not appear on the date fixed in the suit (vide Order No. 24 dated August 25, 1953). On November 19, 1953, the Defendant No. 2 appeared and prayed for time for filing a written statement. On December 4, 1953, Defendant No. 2 Bhubaneswar Dey Hazra filed his written statement (vide Order No. 27).
(2.) Basanabala, the Defendant No. 1, denied all the material allegations in the plaint. She supported the deed of settlement as being valid and operative in law.
(3.) The Defendant No. 2 denied in his written 'statement that the Plaintiff was a pardanashin lady and a woman of weak intellect. He asserted that he never exercised nor had he any occasion to exercise any influence and dominion over the Plaintiff as alleged. He asserted in para. 10 of the written statement that the property -in -suit was purchased with the money of the Defendant in the name of his mistress Ushabala on March 10, 1951. The Defendant allowed Ushabala to deal with the property in any way she liked and did not object to her making a Will in favour of the Plaintiff. The Plaintiff loved Defendant No. 1, daughter of the Defendant No. 2, very dearly and treated her as her own daughter. The Plaintiff having no issue of her own expressed her desire often that the Defendant No. 1 would get the property -in -suit and with this end in view the Plaintiff herself sought the advice and help of an eminent Solicitor Shri C.C. Dey and had a deed of settlement drawn by the said Solicitor. The Defendant never impressed the Plaintiff to execute and register a document in his favour for the purpose of management as alleged and the Plaintiff was never under the influence and dominion of the Defendant. The Defendant did not take advantage of the Plaintiff's illiteracy etc. as alleged in the plaint. The Defendant asserts that the Plaintiff, an intelligent and active woman, running her own business and looking after her own affairs herself, had independent legal advice of an eminent Solicitor and executed the deed of settlement on February 16, 1949, in favour of herself for life reserving her right of residence, management etc. and after her death the Defendant No. 1, then an unmarried minor girl, would get the property -in -suit absolutely. The Defendant acquired no claim or interest in the property -in -suit. The Plaintiff knew the contents of this deed of settlement and understood the same as the contents were explained to her by the Solicitor. The story of power of attorney had been invented by some designing persons for illegal gain. The Defendant denied having had ever practised any fraud as alleged by the Plaintiff. He further asserted that the deed of settlement was not brought about by the Defendant by fraud, misrepresentation and by exercising undue influence and dominion over the Plaintiff as alleged. The Plaintiff voluntarily, with full consciousness of her own rights and the effects of the settlement on her rights and property, executed the deed of settlement. The Defendant affirmed that the deed of settlement was a valid document and was binding on the Plaintiff.;