DEBANGSU BASAK, J.:-

The partition suit relates to the division of the estate left behind by Moni Mohon Dutta since deceased. Late Moni Mohon Dutta was survived by his widow, the original Plaintiff No. 1, four sons being the Plaintiff No. 2, Defendant Nos. 1, 2 and 3 and one daughter, the Defendant No. 4, as his heirs and legal representatives.

The suit was filed by the widow of late Moni Mohon Dutta as the Plaintiff No. 1, and one of his sons the Plaintiff No. 2, against the other heirs and legal representatives. The widow died on September 18, 2003. The Defendant No. 1 died on August 24, 2005. The Defendant No. 1 was survived by the Defendant Nos. 1A and 1B. Consequent upon the death of the parties, the cause title to the plaint was amended. The parties had disclosed various documents. The plaintiff had produced one witness at trial. The Defendant No. 1A and 1B had produced one witness and the Defendant Nos. 5, 6 and 7 produced one witness. At the time of hearing of the arguments of the parties, none appeared on behalf of the plaintiff to make any submission.

Mr. Haradhan Banerjee, learned Advocate for the Defendant Nos. 1A and 1B contends that, Moni Mohon Dutta died seized and possessed of three immovable properties. Moni Mohon Dutta, since deceased, was survived by his widow, four sons and one daughter. The deceased Defendant No. 1 was one of the sons of late Moni Mohon Dutta. His clients are the heirs and legal representatives of the deceased Defendant No. 1. Therefore, as the heirs and legal representatives of one of the deceased son of late Moni Mohon Dutta, his clients are entitled to 1/6th share in the estate of late Moni Mohon Dutta. On the death of the widow of Moni Mohon Dutta being the grand-mother of his clients, his clients are entitled to 1/5th share in the estate of Moni Mohon Dutta, since deceased.

He contends that, the deed of settlement dated August 20, 1991 set up by the Defendant Nos. 7, 8 and 9 by which the Defendant Nos. 7, 8 and 9 were purported to be gifted the 1/6th share of the widow of Moni Mohon Dutta, the original Plaintiff No. 1, in respect of two immovable properties, namely, premises No. 21, Girish Avenue, Shyampukur, Kolkata-700003 and the premises No. 211/1/2, Shibpur Road, Howrah is suspect. He submits that, the plaint was presented on September 8, 1992. He highlights the suspicious circumstances relating to the deed of settlement in reference to the conduct of the parties and the pleadings in the suit. The original Plaintiff No. 1 as the first plaintiff in the suit did not refer to the deed of settlement dated August 20, 1991 in the plaint. The plaint case is not on the basis of the deed of settlement. Another suspicious circumstance, according to the Defendant Nos. 1A and 1B, is that, the Defendant Nos. 5, 6 and 7 till 2001 was claiming not to know of the deed of settlement. These suspicious circumstances, according to him, are material and are required to be given due weightage and consideration by the Court.

He submits that, the original Plaintiff No. 1 died on September 18, 2003. The amendment application consequent upon such death was filed by the Plaintiff No. 2. It was stated in such amendment application that, the Plaintiff No. 1 died intestate.

On the deed of settlement itself which is marked as Exhibit ‘A’ in the instant suit, it is submitted on behalf of the Defendant Nos. 1A and 1B that, the document itself bears signs of the document being suspect. The date when the stamp was purchased is commented upon. The stamp paper on which the document was executed, was purchased by one Advocate while the document was prepared by a different Advocate. The noting on the document states that, such document was allegedly presented for registration at 5 A.M. It is contended on behalf of the Defendant Nos. 1A and 1B that, assuming though not admitting the deed of settlement to be duly executed, such deed of settlement did not create any right in favour of the Defendant Nos. 5, 6 and 7