Judgment

SHAH, J.: These appeals against the judgment by the High Court of Calcutta modifying the decrees passed in three suits Nos. 42 of 1955, 43 of 1955 and 56 of 1955 on the file of the 5th Subordinate Judge, Alipur, raise a common question. The appeals have been filed with certificate granted by the High Court.

2. One Aghore Nath Chatterjee a Hindu governed by the Dayabhaga school of Hindu Law dies in 1908 leaving him surviving four sons-Debendra, Nagendra, Probodh and Makhan. His estate which consisted of a house at Dakhineswar, P. S. Baranagore, and an agricultural land recorded as No. 488 C. S. Dag 1695/1819 was inherited by his sons in equal shares. Debendra dies leaving him surviving his widow and a daughter. Nagendra died leaving him surviving a son Dashrathi. Probodh and Makhan were alive at the date when the suits out of which these appeals arise commenced. Makhan was married to Suhasini and he had four sons - the eldest being Sankar.

3. The shares owned by the four brothers in the estate of Aghore Nath were transferred by several deeds. They are set out in chronological sequence:

(1) On March 3, 1936 Makhan executed a sale deed of his one-fourth shares in the house and the land in favour of his brother Probodh, for a consideration of Rs. 1,999;

(2) Shortly thereafter Dashrathi son of Nagendra transferred his one-fourth share in the house and the land to one Sanat;

(3) On October 7, 1941 Probodh sold his one-fourth share to Suhasini wife of Makhan in the house and the land;

(4) On September 21, 1942 Debendra s widow and daughter sold their one-fourth share in the house and the land to Suhasini;

(5) On October 6, 1950 Sanat who had purchased the share of Dashrathi sold it to Probodh;

(6) On April 7, 1955 Probodh gifted his one-fourth share in the house and the land to Sankar;

(7) On December 5, 1956 Probodh gifted another one-fourth share in the house to Sankar.

4. Sankar filed two suits Nos. 42 and 43 of 1955 in the Court of the 5th Subordinate Judge, Alipur. In Suit No. 42 of 1955 Sankar originally claimed partition and separate possession of a fourth share in the residential house. By amendment of the plaint after the deed dated December 5, 1956, he claimed a half share in the house. This suit was filed against Probodh, Suhasini and Makhan. By suit No. 43 of 1955 Sankar claimed a fourth share in the land relying upon the gift deed dated April 7, 1955. He claimed to have purchased the interest of one Karimaneesa Bibi who was a tenant on the land. This suit was filed against Suhasini and Makhan. Makhan filed Suit No. 56 of 1955 for a declaration that the sale deed relating to a fourth share in the house and the land dated March 3, 1936, executed by him in favour of Probodh was not intended to be acted upon and was never acted upon, and that he was at all relevant times the owner of that share. To the suit wee impleaded as defendants Probodh, Suhasini and Sankar. The three suits were consolidated for hearing.

5. The Trial Court decreed Suit No. 42 of 1955: it also decreed Suit No. 43 of 1955 subject to rejection of the claim in respect of a part of the land. The Court held that the sale deed dated March 3, 1936 executed by Makhan was not sham. The Court further held that Probodh had not transferred his fourth share to Suhasini by the deed dated October 7, 1941. Makhan s suit No. 56 of 1955 was on the finding recorded by the Trial Court dismissed.

6. Makhan appealed to the High Court of Calcutta. The High Court was of the view that Makhan had "apparently" transferred his fourth share in the land and building by deed dated March 3, 1936, but the transaction was of a nature different from its tenor. They observed that Probodh had advanced to Makhan in 1936 the sum of Rs. 1,999 and that he had taken "a kobala" from Makhan in his name but the kobala was never acted upon. We cannot therefore hold that the sum of Rs. 1,999 was paid as consideration for the kobala; but the kobala was taken, may be, with an idea that the repayment witho