S. N. BHATTACHARJEE, J.

( 1 ) THE substantive question of law involved in this appeal is whether the first appellate Court while reversing the judgment of the trial Court was justified in holding that the Nirupan Patra executed by Dhukhishyam Barman in favour of the appellant No. 1 was a collusive and sham transaction despite the fact that the plaintiff himself derived benefit therefrom.

( 2 ) THE respondent No. 1 herein and his two sisters filed Title Suit No. 66 of 1985 in the trial court alleging that the appellant No. 1 along with other appellants had been threatening them with dispossession on the basis of a Nirupanpatra purportedly executed by his father, Dukhishyam Barman, dt. 5-4-1972 although such a deed was vitiated by fraud and undue influence as Dukhishyam was aged about 95 years and had been suffering from physical infirmities which rendered him incapable of understanding about the nature of the transaction. The aforesaid Nirupanpatra which seeks to devise and distribute the immovable properties among two sons and wife of Dhukhishyam is dispropertionate shares to the exclusion of the daughters of the executant is not binding upon the plaintiffs. The learned trial Judge dismissed the title suit holding that Nirupanatra was a valid and genuine document.

( 3 ) REVERSING the said decision of the trial Court the first appellate court dereed the suit by holding that Nirupanpatra was a sham transaction and execution of such deed was result of collusion between the defendant No. 1 (appellant No. 1 herein) and the witnesses to the deed.

( 4 ) IN this appeal the decision of the first appellate Court has been challenged.

( 5 ) THE learned counsel appearing for the appellant has contended that the conclusion arrived at by the first appellate Court on the basis of the facts is a legal one and such legal conclusion should be set aside as the same is based on non-consideration of relevant meaterials on record. According to the learned counsel, the learned first appellate Court below failed to appreciate that the plaintiff signed a petition of compromise in Title Suit No. 608 of 1970 admitting his one-fourth shares in Dag No. 230 on the basis of Nirupanpatra and also failed to consider the admission of the P. W. 1 that he initiated a proceeding under S. 144 of the Criminal Procedure Code in respect of Dag No. 17 which he got by virtue of Nirupanapatra. The learned counsel has further argued that the first appellate Court instead of decreeing the suit ought to have sent the suit back on remand by giving opportunity to the defendant to prove the attestation of Nirupanpatra by examining other attesting witnesses.

( 6 ) IN coming to his finding the learned Judge took into consideration the facts which transpired from the evidence on record, the inner evidence arising from the contents of the document, conduct of the parties and fourthly the suspicious circumstances surrounding the execution of the deed.

( 7 ) THE facts which transpire from the evidence are that Dukhishyam was an illiterate and was aged more than 90 years at the time of execution of the deed and have been suffering from various ailments of old age. It is in the evidence that although the sons lived with the parents but they were in separate mess. The executant, Dukhishyam was inimically disposed with two other attesting witnesses, Radha Krishan Barman and Kanailal Barman. The evidence further reveals that out of the three attesting witnesses, Jagdish Barman denied to have witnessed the execution of any document by Dukhishyam Barman. He also denies his signature in the Nirupanpatra. The learned appellate Court has found that other two attesting witnesses who are inimically disposed with the executant were not at all examined. The hostility between the attesting witnesses and the executant is evidenced by Title Suit No. 608/70 filed by Radha Krishna Barman, one of the attesting witnesses, against the executant, Dukhishyam and others. When the (Ext. C/1) was execut

Click Here to Read the rest of this document