Ajay K. Basu, J.
1. This is a suit filed by the plaintiff, Jyotirmoyee Debi, against (1) Dureadas Banerjee, his mother Haripriya Banerjee, since deceased, leaving her the only son Durgadas Banerjee and (2) one Haramohan Banerjee, cousin of the said Durgadas Banerjee.
2. According to the plaintiff, the premises No. 35 Amherst Row, Calcutta containing a two-storied building more fully described in the schedule to the plaint, inter alia, containing 1 Cottah 7 Chittaks of land valued at Rs. 25,000/-, belonged to one Beni Madhab Banerjee, since long deceased. After the death of the last owner being Pratima Debi who died in 1947, according to the plaintiff, the plaintiff Jyotirmoyee Debi became the only surviving heir of Pratima Debi and as such, became the owner of the said property, 35 Amherst Row by inheritance.
3. The genealogical table as set out in the plaint is as follows :--
BKNI MADHAB BANERJEE (D)
Monmatha Banerjee Narendra Nath Banerjee
(died in 1922) (died in 1920)
Dasharathi alias Kalidas Wife Pratima Debi
(died in 1904 while his (died in 1947)
father was alive) |
| (No issue)
4. According to the plaintiff as averred in the plaint. Jyotirmoyee having inherited the said property from last owner Pratima Debi, was enjoying the said property by realising the rents from the tenants and the property in fact vested in her after the death of the said Pratima Debi in 1947, she being the only issue and heir of her mother, Nivanani, since deceased, who was the grand-daughter of Manmatha Nath Banerjee, the brother of Narendra Nath Banerjee i.e. the husband of Pratima Debi.
5. According to the plaintiff, the defendants who are the heirs of one Gangadhar Banerjee (Bhattacharya) living and residing in the adjacent house at 9 Barick Lane, are falsely claiming to be the heirs of late Pratima Debi and taking advantage of the helpless condition of the plaintiff as a poor, uneducated and practically destitute widow having a minor son and a minor daughter living in her late father-in-law's house at Behala 10/12 miles away from Amherst Row are trying to grab this property by realising rent from the tenants and by doing other acts of pretended ownership to the detriment of andWithout the knowledge and consent of the plaintiff.
6. According to the plaintiff, the said family of Ganeadhar Banerjee who are really Bhattacharyya, were the next neighbour of the said Pratima Debi who being also an infirm, old and helpless widow had to depend on her neighbour Gangadhar to assist her in her worldly affairs and other matters for the management of the said property and as neighbour she had full confidence on the said Gangadhar Banerjee or Bhattacharyya who used to look after, supervise and manage the said property on behalf of Pratima Debi while she was alive and on Pratima Debi's death, the plaintiff had also to depend on the said Gangadhar Banerjee for managing the said property on her behalf. The said Ganeadhar Banerjee died in 1961 and thereafter the defendants, particularly the defendant No. 1 Durgadas Banerjee, son of Gangadhar Baneriee, used to look after and manage the said property and realise the rents from the tenants like his father though his father Gangadhar Banerjee used to pay the rents to the plaintiff sometimes after deducting the expenses for municipal taxes and other expenses. Durgadas Baneriee though in fact also paid something to the plaintiff in the beginning but thereafter failed and neglected to pay anything and showed indifference and neglected her. Thereafter the plaintiff on the 4th January, 1964 called upon the said Durgadas Baneriee for rendition of accounts. Dureadas Baneriee on 28th January, 1964 for the first time asserted hostile title of the defendants in relation to the said property and the plaintiff discovered that the defendant Durgadas Banerjee as well his father Gangadhar Banerjee had surreptitiously and fraudulently mutated their names in the Calcutta Corporation and the Calcutta Collectorate in place of the said Pratima Debi without the knowledge and consent of the plaintiff and denied the title of the plaintiff in relation to the same and is misappropriating the entire rents collected by them presumably on behalf of the plaintiff. The mutation was made surreptitiously without the knowledge and consent of the plaintiff by the defendants which was a fraud practised upon the plaintiff and in breach of trust reposed in them by the plaintiff which the plaintiff for the first time came to know after getting a letter in reply from the defendants dated 28th January, 1964.
7. The plaintiff's solicitor by his letter dated 6th January, 1964 wrote this :--
'.........I have received instructionsfrom my client Sm. Jyotirmoyee Banerjee of Dakshin Para, Barisiha, Pro Ashathatala, Calcutta to state as hereunder :
My client is the sole and absolute owner of the premises No. 35, Amherst Street, Calcutta.
Your father was entrusted by my client's predecessor-in-interest and by my client to look after and manage the said property. Since death of your father you were entrusted to look after and manage the said property. My client states that you have failed to render any accounts in spite of repeated demands.
I have received instructions to demand of you, which I hereby do, to render accounts within a fortnight from date hereof. In default my client will take such steps as she may be advised in the premises.'
8. The defendant's Advocate by his letter dated 28th January, 1964 stated this:--
'.........Your letter dated 4-l-l964 and 20-1-1964 on behalf of your client Sm. Jyotirmonyee Banerjee of Dakshinpara. Barisha. Pro Ashathatala Calcutta re: the above addressed to my client Sri Durgadas Banerjee of 9 Barick Lane, Calcutta has been handed over to me with instructions to reply thereto as follows :
My client is surprised to note the contents of your said letter. My client denies that your client is the sole and absolute owner of the premises No. 35, Amherst Row, Calcutta as alleged therein. My client further denies that my client's father was ever entrusted by your client's predecessor-in-interest or by your client to look after and manage the said property or my client was entrusted by your client to look after and manage the said property after the death of my client's father or at any time. So, the question of rendition of accounts after repeated demands (which my client denies) does not arise.
My client states that he and his other co-sharers are in enjoyment and possession of the said property in inheritance from the last recorded owner Sm. Protima Devi, on and from the year 1947 by regular payment of taxes to the Calcutta Corporation and the rent to the Calcutta Collectorate up-till this date.
Under the aforesaid circumstances my client calls upon your client to explainin what right she claims the ownership and possession of the said property, as against my client and his co-sharers and demand rendition of accounts within 7 (seven) days from the date of receipt hereof. In default my client will take legal steps against your client for making such false and fantastic claim against my client, without any further reference of which please take notice.'
9. The plaintiff also came to know that the defendant has also filed an ejectment suit against certain tenants falsely claiming to be the landlord of the said premises and the said suit was compromised in favour of the plaintiff in those suits.
10. The plaintiff thereafter filed this suit claiming declaration that the plaintiff is the owner of the suit property, permanent injunction and other reliefs more fully set out in the plaint. In the plaint she has annexed two letters, one written by her solicitor dated 4th January, 1964 and the other reply thereto dated 28th January, 1964 as stated above.
11. In the written statement filed by the defendants they have set out a genealogical table showing the relationship between the parties and specially with the said Protima Debi, since deceased and the main stand of the defendants is that after the death of Protima Debi, the last owner Gangadhar being her nearer relation than Jyotirmoyee inherited the said property and got his name mutated in the records of the Calcutta Collectorate and the Corporation of Calcutta. It is the further case of the defendant that on 29th October, 1960, the said Gangadhar made a gift of 4 annas share in the said premises No. 35 Amherst Row, Calcutta to his nephew Haramohan Banerjee, the defendant No. 2 in this suit. The said Gangadhar Banerjee died leaving surviving Durgadas Banerjee and his widow Sm. Haripriya Banerjee, who has also died. Since the death of Gangadhar the defendants have been paying the owners share of taxes to the Calcutta Corporation in respect of the said premises and have got their names mutated.
12. The defendants deny the title of the plaintiff. The defendants deny that the plaintiff has ever such possession in the said property or ever collected rents therefrom. The defendants, of course, admit that Gangadhar helped the said Protima Debi to look after the said property during her lifetime. The defendants deny the title of the plaintiff.
13. Mrs. Protiva Banerjee with Mr. Sanyal appeared for the plaintiff and Mr. Khan appeared for the defendants.
14. The following issues were raised :--
1. Is the plaintiff entitled to premises No. 35, Amherst Row, Calcutta, as the owner thereof ?
2. Are the defendants entitled to the property ?
3. Is the suit maintainable ?
4. To what relief, if any, is the plaintiff entitled ?
15. The plaintiff Jyotirmoyee Debi has given evidence in support of her case and one tenant Ajitananda Sen Gupta has deposed on her behalf.
16. According to the plaintiff she says :
'Q. 4. Do you know the defendant Durgadas Banerjee ?/ He was acquainted with my Barama Protima Debi and they used to live in a building which was attached to this building and he used to do the work of priest and he used to worship and he was Bhattacharya Brahmin.
Q. 6. Do you know the defendant No. 3 Haramohan Banerjee ?/ He is cousin, that is, the son of his father's elder brother.
Q. 21. You have told my lord that Gangadhar used to look after the property; whom he used to render accounts in respect of the income of the estate ?/ To Pratima Debi.
Q. 22. After the death of Pritima Debi who used to get the income of the estate ?/ I.
Q. 24. Pursuant to that arrangement did you go to collect rent from Gangadhar or his son ?/ Yes.
Q. 25. Would you tell my lord upto which year you collected rent from them in this manner ?/ Upto 1962-63.
Q. 27. After his death did you collect any rent from the defendant Durgadas ?/ I had been there and I had collected rents but he used to pay a small sum Rs. 5 or 10 or Rs. 15. My husband used to go there very often.
Q. 28. Then what happened ?/ In 1962-63 he asked me who I was. Thereafter I made searches in the Corporation and Collectorate, and found that he had mutated his own name. Thereafter I took the help of law.'
17. In her evidence she says that she used to get rent from the tenants particularly from Ajitananda Sen Gupta and upto 1962-63 she was receiving Rs. 5 or Rs. 10 or Rs. 15 from them as rent butin 1962-63 the defendants stopped paying her anything. According to (her evidence Gangadhar and his family were no relations of Protima Debi (Q. 42). In Q. 71 she says that she is the only heir now living in the family of Beni Madhab:
'Q- 89. Did you ever live at 35 Amherest Row ?/ Yes. I used to go there and reside with my husband. My husband went to Bilaspur for a short time when he had accepted a job. Thereafter I received information regarding the illness and I came back. Thereafter she did not use to keep me as I was grown up.
Q. 92. Your mother did she ever live at 35 Amherst Row ?/ Upto the time she was married. Thereafter she used to visit us and I used to go with her.'
18. In Q. 98 she says that her grandmother Protima Debi became invalid, her father used to look after her and the defendant Durgadas used to come there. In cross-examination she says :
'Q. 120. I further suggest that you have got no right, title or interest in the suit premises ?/ I do not agree. My Baroma used to say in the presence of Gangadhar Babu and Ajitananda Babu and all others that I being the sole descendant of her family would be the only owner of that premises after her death.
Q. 127. Has Beni Madhab died leaving two sons, Monmotho and Narendra ?/ Monmotho's only son was Dasarathi, my maternal grand-father and Narendra Babu did not have any issue. And Dasarathi's only daughter was Nivanani who is my mother. I am her only daughter.'
19. Ajitananda Sengputa says in Q, 16 that the plaintiff Jyotirmoyee Debi is the landlady of premises No. 35, Amherst Row and in Q. 19 he says that Jyotirmoyee Debi is nearer to Protima Debi in relation than Haramohan and his further evidence in Q. 21 is that Gangadhar used to collect rent on behalf of Jyotirmoyee Debi after the death of Protima Debi and in Q. 24 he says that Jyotirmoyee Debi, the plaintiff, used to come down occasionally and used to collect rent from Gangadhar and he also stated that Jyotirmoyee's husband sometimes used to collect rent from him. He was not cross-examined very much by Mr. Khan and his evidence has practically gone unchallenged. I accept his evidence.
20. The defendants in their written statement stated in paragraph 21 that the said Gangadhar Banerjee had helped the said Protima Banerjee to look afterthe said properties during her lifetime. I am not at all impressed with the evidence of Durgadas Banerjee and Haramohan Banerjee. It is strange that though Durgadas Banerjee has stated that fact in the written statement yet while giving evidence before me in Q. 103 his answer was: 'I do not admit it', and in Q. 105 he says that Protima Debi herself used to collect rents. Therefore he contradicted from the stand taken by him in the written statement. Similarly, about who succeeded to the property at one stage his case was that on the death of Protima Debi his father Gangadhar became the full owner and in Q. 89 he says that Gangadhar Banerjee was the only sole surviving male heir and legal representative of Narendra Nath Banerjee but in Q. 147 he says that on the death of Protima Debi, Gangadhar and Harmohan both became joint owners of the property. Thereafter he says that Gangadhar gave his four annas share to Haramohan. From this it is clear that the defendant was not speaking the truth. Similarly, Haramohan has also stated that Gangadhar never helped Protima Debi in managing her affairs.
21. Considering the entire facts and circumstances of the case, it is clear that the defendant has admitted the genealogical table as given in the plaint of Jyotirmoyee Debi although he says in the written statement that that is not the full genealogical table. But Durgadas has admitted that the genealogical table as put forward by him in the written statement was based on an affidavit of Durgadas's father Gangadhar, but that affidavit has not seen the light of the day. Therefore, the basis of the genealogical table as stated by him in the written statement has not been proved. I reject the same.
22. Even intrinsically the genealogical table in the written statement cannot be correct because, as stated by Haramohan, the death of his father as mentioned in the genealogical table is not correct. Therefore, on both these points the genealogical table as stated by the defendants in the written statement and on the basis of which the defendants claim to be the nearer heirs of Protima Debi is not a reliable evidence and I reject it.
23. As I have stated, the evidence of both Durgadas and Haramohan cannot be relied on because they are making contradictory statements and their written statement is at variance with their verbal evidence particularly as stated above, regarding management of the property during Protima's lifetime and Haramohan's share. It is also strange that no independent corroboration of Durgadas's or Haramohan's evidence was available before me. Therefore, I am unable to accept the evidence of Haramohan and Durgadas.
24. The main stand of the defendants was that the mutation of their names have taken place in the Calcutta Collectorate and the Calcutta Corporation. That may be so, but nonetheless there is no evidence that any notice was ever given to or served upon Jyotirmoyee and everything has presumably been done at the back of Jyotirmoyee Debi without her knowledge and consent. The defendants might have a good case for adverse possession, but that defence has not been taken in the case before me. In that event of the matter, if all this mutation was done without the knowledge or consent of Jyotirmoyee Debi, she is not bound by the subsequent conduct.
25. Another point strongly relied on by the defendants was about some Small Causes Court decree, but I find that none of the decrees decided any question of title and therefore they are of no value.
26. One of the main points urged by Mr. Khan was about the suit being not maintainable because there is no prayer for any consequential relief. According to Mr. Khan, the possession has not been asked for and therefore relying on certain Supreme Court decision in Ram Saran v. Ganga Devi, : AIR1972SC2685 Mr. Khan says that this suit should be dismissed. Mrs. Banerjee appearing for the plaintiff on the other hand argued that in this particular case the possession was not with the defendants at all. According to the plaintiff, possession was with the tenants and that is also admitted by the defendants. Therefore, according to her she cannot claim for possession against the defendants and as a matter of fact, her case is that the tenants are of the plaintiff and not of the defendants. As a matter of fact, one of the tenants, A. Sengupta has deposed in this case in her favour. Mrs. Banerjee strongly relied on a case reported in : AIR1973AP189 . (Dumpala Ramachandra Reddy v. Dumpala Kanta Reddy) where it says, under Section 34 any person entitled to legal character or a right to any property can institute a declaratory suit against another denying, or interested to deny, his title to such character or right and he will be declared so entitled only if he is incompetent to seek for any further relief such as delivery of possession of property or recovery of any sum of money.
27. Another point on which Mrs. Banerjee relies is Sections 50 and 60 of the Evidence Act: opinion evidence of relationship. She strongly relies on : AIR1959SC914 , (Dolgobinda Paricha v. Nimai Charan Misra). Here the opinion evidence of Pratima as stated by Jyotirmoyee, namely, Pratima saying that Jyotirmoyee is the daughter of the house who will inherit the property, has gone a long way to establish her title. Mrs. Banerjee has also relied on : AIR1968Pat481 , (Biswanath Gosain v. Dulhin Lalmuni), : AIR1968All58 , (Shanker Lal v. Vijay Shanker). Mrs. Banerjee also relies on : AIR1961Cal359 , (Carapiet v. Darderian), because according to her the defendants have not put their case in cross-examination. Considering the entire facts and circumstances of the case and arguments of counsel I accept the plaintiff's case.
28. Now coming to the issues, I answer the first issue in the affirmative and I answer issue No. 2 in the negative. I answer the third issue in the affirmative because, in my opinion, possession has not been asked for against the defendants as admittedly the defendants were not in possession.
29. There will therefore be a decree in favour of the plaintiff Jyotirmoyee Debi. She is entitled to the declaration in terms of prayer (a) of the plaint that she is the owner of the property 35, Amherst Row. There will also be a permanent injunction in terms of prayer (b) of the plaint. The plaintiff is also entitled to costs.
30. There will be a stay of operation of this order for one week as prayed by Mr. Khan.