JUDGMENT :

Partha Sarathi Chatterjee, J.

1. Judgment and decree dated 22nd December, 2016 passed by the learned Civil Judge, Senior Division, Sealdah in Title Suit no. 109 of 2011, whereby the suit for declaration, partition and permanent injunction instituted by the plaintiff/appellant herein was dismissed, have been called in question in the present appeal.

2. One Sekhar Kumar Roy, the plaintiff/appellant (in short, Sekhar) presented the plaint contending inter alia that his father, Sailendra Kumar Roy, since deceased (in short, Sailendra) purchased the suit property by one registered deed of sale in 1969 in ‘benam’ of his wife, Smt. Lila Roy, defendant no. 1, since deceased (in short, Lila). Lila, who happened to be a house-wife, was a mere name lender and she did not contribute any single farthing towards consideration money since she had no independent income at the relevant time of purchase of the suit property. Sailendra got the building plan sanctioned in the name of Lila and by spending money from his own fund constructed two-storied building thereon. He thereafter died intestate on 29.5.1999 leaving behind his widow, Lila, the plaintiff as his son and one daughter, the defendant no. 2, namely Sumita Saha (in short, Sumita), who according to Section 8 of Hindu Succession Act have inherited 1/3rd share each of the suit property and Sekhar stayed in the suit property till 11.5.2011 and since then, he started leaving apart. Sekhar thereafter approached the defendants to effect partition of the suit property by metes and bounds but the defendants refuted the claim of partition of Sekhar and hence, the suit.

3. Records reveal that both the defendants defended the suit by filing separate written statements. Crux of the defence taken by Lila and defendant no. 2 in their written statement is as follows:

i) Lila purchased the suit property from her ‘stridhan’ property. She asserted that she got the building plan sanctioned in her own name and then constructed two-storied building on the suit land from her own fund;

ii) She further claimed therein that according to legislative fiat incorporated in Section 3 of Benami Transaction (Prohibition) Act, 1988 (hereinafter referred to as the 1988 Act), she became the absolute owner of the suit property and same was duly mutated in her name and deed of conveyance dated 20.1.1970 had never been challenged either by Sekhar or by her husband at any point of time and mere payment of requisite consideration money does not, ipso facto, prove benami transaction;

iii) She claimed that Section 8 of Hindu Succession Act, 1955 has got no application in the present lis and she emphatically denied that Sekhar has acquired 1/3rd share in the suit property;

iv) She lamented that Sekhar abandoned her in May, 2011 and since his marriage, Sekhar subjected her to mental and physical torture and she used to pass her days taking financial assistance from her daughter, the defendant no.2 and by executing one will, which was registered on 4.9.2011, she bequeathed the suit property in favour of Sumita;

4. Upon pleadings of the respective parties, the learned Court below framed as many as four issues. In corroboration of the facts depicted in the plaint, Sekhar adduced his oral testimony but he did not tender any document whereas to lend support to their case projected in written statement, both the defendants deposed and produced some documents which were admitted in evidence as Ext. A to E.

5. Aggrieved by the judgment and decree whereby the suit was dismissed, Sekhar preferred the present appeal contending, inter alia, that the learned Court below ought to have considered that Lila happened to be a mere house-wife and she had no independent income and hence, she was a mere name lender and Sailendra, his father purchased the land and constructed a structure thereon for the benefits of his family members and learned Court below ought to have considered that Lila in her evidence admitted that she was not engaged in any