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IN THE HIGH COURT AT CALCUTTA
Tarun Kumar Gupta, J.
Smt. Santa Hazra
Versus
Smt. Basanti Ghosh
S. A. Nos. 336 to 338 of 1998
Decided on : December 23, 2011
DEED OF RELEASE - INTERPRETATION - BENAMI TRANSACTION - OWNERSHIP - LIMITATION - EVICTION SUIT - LICENSE - REVOCATION - POSSESSION - SUCCESSION - STRIDHAN - TITLE SUIT
Fact of the Case:
A deed of release was executed in 1938 by Subala in favor of her husband Jatindra Mohan Ghosh, stating that the property purchased in her name in 1935 was actually purchased with her husband's money, making her a mere name lender. In 1963, Jatindra Mohan Ghosh gifted the property to his second wife, Basanti, through a registered deed of gift. The original plaintiffs, Abanindra Nath Ghosh and Jagadindra Nath Ghosh, sons of Jatindra Mohan Ghosh and Subala, filed a title suit in 1965, claiming ownership of the property and seeking cancellation of the deed of release and the deed of gift. Basanti filed eviction suits against Abanindra Nath Ghosh and Jagadindra Nath Ghosh, treating them as licensees under her.
Finding of the Court:
The court held that the deed of release was not vitiated by fraud, undue influence, or misrepresentation. The court also found that the purchase deed of 1935 standing in Subala's name was a Benami document, with Jatindra Mohan Ghosh being the real owner. The court further held that the deed of gift executed by Jatindra Mohan Ghosh in favor of Basanti was valid and that Basanti acquired full title to the property. The court dismissed the plaintiffs' title suit as barred by limitation and upheld the eviction suits filed by Basanti.
Issues: 1. Whether the deed of release executed by Subala in favor of her husband was vitiated by fraud, undue influence, or misrepresentation. 2. Whether the purchase deed of 1935 standing in Subala's name was a Benami document. 3. Whether the deed of gift executed by Jatindra Mohan Ghosh in favor of Basanti was valid. 4. Whether the plaintiffs' title suit was barred by limitation. 5. Whether the eviction suits filed by Basanti were maintainable.
Ratio Decidendi: 1. The court relied on the evidence of attesting witnesses and the Registrar's examination of Subala at the time of registration to conclude that the deed of release was not vitiated by fraud, undue influence, or misrepresentation. 2. The court considered the lack of documentary evidence to support the plaintiffs' claim that Subala had acquired the property with her Stridhan money and the evidence indicating that Jatindra Mohan Ghosh had sufficient means to purchase the property in 1935 to conclude that the purchase deed of 1935 was a Benami document. 3. The court found that the deed of gift executed by Jatindra Mohan Ghosh in favor of Basanti was duly registered and that there was no evidence to suggest that it was obtained through fraud or undue influence. 4. The court held that the plaintiffs' title suit was barred by limitation as they had knowledge of the alleged fraud in 1964 when they received a lawyer's notice but filed the suit only in 1965. 5. The court held that the eviction suits filed by Basanti were maintainable as the plaintiffs were in possession of the suit property as licensees under Basanti and their license was revoked.
Final Decision: The court dismissed all three second appeals filed by the plaintiffs, upholding the judgments of the lower courts. The court also declined to award costs.
Tarun Kumar Gupta, J.:-
This appeal is directed against judgment and decree dated 9th of October, 1996 passed by learned Additional District Judge, 9th Court, Alipore in Title Appeal Nos. 199, 201, and 202 all of 1992 affirming judgment and decree dated 30th of January, 1992 passed by learned Assistant District Judge, First Court at Alipore in Title Suit Nos. 92 of 1987, 93 of 1987 and 94 of 1987. Learned Trial Court disposed of those three suits analogously by single judgment resulting filing of said three appeals in the learned Lower Appellate Court who also disposed of those three appeals analogously by the judgment impugned.
2. One Basanti Ghosh alias Lila Ghosh filed Title Suit No.180 of 1966 which was later renumbered as Title Suit No.93 of 1987 in the Court of learned Munsif, second Court at Alipore against Jatindra Mohan Ghosh alleging inter alia that she was the owner in possession of premises No.2/3, Hindustan Park, Ballyganj, Calcutta-29 by virtue of a registered deed of gift dated 14th of December, 1963 executed by her husband Jatindra Mohan Ghosh. Defendant Jagadindra Nath Ghosh was a son of Jatindra Mohan Ghosh by his first wife and was staying in a portion of said suit house which was described in the schedule of the plaint, as a licensee under Jatindra Mohan Ghosh and later on under plaintiff. The plaintiff revoked the licence of defendant Jagadindra Nath Ghiosh on 14th of February, 1964 and asked him to vacate the suit premises. On his refusal the suit was filed for declaration that defendant Jagadindra Nath Ghosh was a licensee under the plaintiff and that the licence was revoked, with a prayer for recovery of ‘khas’ possession of the suit premises after evicting defendant threrefrom and mesne profit etc.
3. On 13th May, 1964 said Basanti Ghosh filed another suit for recovery of khas possession on termination of licence against defendant Abanindra Nath Ghosh, another son of Jatindra Mohan Ghosh by his first wife, being Title Suit No.208 of 1964 finally renumbered as Title Suit No.94 of 1987 in the Court of learned Munsif, Second Court at Alipore on same grounds of Title Suit No.93 of 1987.
4. On 27th January, 1965 said Abanindra Nath Ghosh and Jagadindra Nath Ghosh filed Title Suit No.5 of 1965 finally renumbered as Title Suit No.92 of 1987 in the Second Court of Sub-ordinate Judge at Alipore for declaration and injunction against their father Jatindra Mohan Ghosh, step mother Basanti Ghosh, Mira Biswas and Sima Sarkar (married daughters of Jatindra Mohan Ghosh through his first wife).
5. The case of the plaintiffs’ in Title Suit No.92 of 1987 may be summarized as follows:-
6. Their father Jatindra Mohan Ghosh married their mother Subala Ghosh who was second daughter of Atul Chandra Guha, Zamindar of Bajra Jagini of Dhaka (now in Bangladesh) in 1916. Atul Chandra Guha gave sufficient dowry in said marriage. He also made a provision for Rs.5,000/- for each of his children including Subala Ghosh. At the time of said marriage Jatindra Mohan Ghosh was an employee of the Port Commissioner, Calcutta having meagre income. Subala with her ‘Stridhan’ purchased the suit land at a price of Rs.3,000/- from one Indu Bhusan Sarkar through a kobala dated 9th of August, 1935 and constructed the suit building upto ground floor with her own money. While Subala was ill and not fit either physically and mentally a deed of release dated 20th of September, 1938 in favour of her husband Jatindra Mohan Ghosh was obtained by exercising undue influence. Said fact was not known to the plaintiffs as they were minor at that time. The deed of release was vitiated by fraud and undue influence and was not binding on them and by said deed no title of Subala in the suit property passed to Jatindra Mohan Ghosh. Subala due to her prolonged illness died in September, 1939 and Jatindra Mohan Ghosh married Basanti Ghosh in 1940 and Reba Sarkar is the only daughter of Jatindra Monhan Ghosh through his second wife Basanti alias Lila. Jatindra
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