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Biswanath Banerjee and ors. Vs. Balai Lal Mukhopadhaya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberF.A. No. 17 of 1957
Judge
Reported inAIR1973Cal345
ActsEvidence Act, 1872 - Section 114
AppellantBiswanath Banerjee and ors.
RespondentBalai Lal Mukhopadhaya and ors.
Appellant AdvocateRanjit K. Banerjee and ;Bimal K. Banerjee, Advs.
Respondent AdvocateManindra Nath Ghosh, ;Kedar Nath Raha, Advs. for Nos. 1 to 8 and ;Nripal Ch. Roy Choudhury, Adv. for Respondent No. 9
DispositionAppeal dismissed
Cases Referred(See Durga Charan Chunder v. Kharda Co. Ltd.
Excerpt:
- a.k. sinha, j. 1. this appeal is preferred by the plaintiffs-appellants against judgment and decree of the trial court in a suit for partition briefly in the circumstances as follows: one saraswati devi, since deceased, a daughter of one joy kishan mukherjee of uttarpara, it is alleged, got absolutely under his will a dwelling house with connected lands and tanks amongst other properties at uttarpara which devolved after her death upon her three sons gnanendra nath banerjee. amarendra nath baneriee and sachindra nath banerjee in equal share, who during their lifetime were in possession thereof as the members of the dayabhaga hindu joint family. of these three brothers gnanendra died first in or about 1314 b. s. leaving his only son parbati as his heir. a bus service business started by.....
Judgment:

A.K. Sinha, J.

1. This appeal is preferred by the plaintiffs-appellants against judgment and decree of the trial Court in a suit for partition briefly in the circumstances as follows:

One Saraswati Devi, since deceased, a daughter of one Joy Kishan Mukherjee of Uttarpara, it is alleged, got absolutely under his Will a dwelling house with connected lands and tanks amongst other properties at Uttarpara which devolved after her death upon her three sons Gnanendra Nath Banerjee. Amarendra Nath Baneriee and Sachindra Nath Banerjee in equal share, who during their lifetime were in possession thereof as the members of the Dayabhaga Hindu Joint family. Of these three brothers Gnanendra died first in or about 1314 B. S. leaving his only son Parbati as his heir. A bus service business started by Amarendra Nath along with Sachindra as joint family business though proved to be a profitable concern at the early stage 'became ultimately a losing concern resulting in involvement of debts. In order to avoid the clutches of creditors end to protect the dwelling house of the family, it is alleged Sachindra on his own initiative had a deed of sale executed and registered on 14-12-37 by Amarendra in respect of 1/3rd share of the above property and since kept him as benamidar of Amarendra during his lifetime and after latter's death the plaintiffs Nos. 1 to 8 being his sons and No. 9 being his widow had been and are still in possession thereof together with Sachindra during his lifetime as members of the undivided Hindu joint family. On or about 23-6-39, Parbati executed and registered a deed of conveyance in favour of one Lokenath Mukheriee in respect of his 1/3rd share. On or about 5-12-43. Sachindra as Karta of the joint family. Amarendra having died in the meantime sometime in 1938, re-purchased by a registered document of conveyance the share of Parbati from Lokenath with the money obtained from sale of portion of the joint family properties and joint family capital and since then the plaintiffs had been in joint enioyment and possession of the entire dwelling house with lands and tanks.

2. Sachindra. however, had no male issue and his only daughter, it is alleged became unchaste and left him. He could not maintain the burden of joint family expenses with his small salary as a school teacher from school and his health broke down and he suffered from mental derangement. Taking advantage of his weak state of health and mental unsoundness some of the defendants alleged to be members of the Managing Committee of the 'Uttarpara Junior High School' got a deed of gift executed and registered in favour of the school in respect of the dwelling house of the Parties which, it is alleged, is 'invalid inoperative and a sham document' and could not create any title in favour of the school. The plaintiffs in these circumstances claimed partition of their 1/3rd share in respect of the above property by metes and bounds.

3. The suit was contested by a group of stranger purchasers of certainportion of the dwelling house lands, defendants-respondents Nos. 10 to 16, by the members of the school committee defendants-respondents Nos. 1 to 8 and by defendant-respondent No. 9. daughter of Sachindra putting in three sets of separate written statements. Apart from the general denial of all material allegations of the plaint the case set up by all the defendants in their written statements substantially was that the conveyance executed by Amarendra was not a benami document, but Sachindra purchased his share on payment of the entire consideration money and since then he became the exclusive owner of 2/3rd share of the entire dwelling house property. He permitted Amarendra and after his death his widow and sons, the plaintiffs, to continue to stay in the property out of human consideration who had no right, title interest or possession in the disputed property as members of the Hindu joint family or otherwise after the sale was effected by Amarendra in respect of his 1/3rd share. Sachindra also purchased the share of Parbati on his own account from Lokenath and thus became the absolute owner of the entire dwelling house property. He executed a deed of gift in favour of the school out of his own free will and in perfect state of health and thus the plaintiffs had no right to claim partition. The stranger-purchasers defendants 10 to 16 acquired valid title by their respective purchases from Lokenath.

4. Upon these pleadings on the principal issue as to the plaintiffs' title to the disputed property and their right to a decree for partition the trial Court found as a fact that Parbati, Amarendra and Sachindra were not members of a joint family but were in separate mess and properties and the conveyance executed by Amarendra in favour of Sachindra was not a fictitious document kept in his benami but a real deed of transfer conveying right title or interest in respect of the property conveyed to Sachindra absolutely. As regards possession of the plaintiffs the trial Court took the view that Sachindra was a kind-hearted man and permitted them to live there even though Amarendra was deprived of his interest in the dwelling house property. The trial Court also found that Sachindra executed the deed of gift in full senses and good health and not as a result of fraud or undue influence exercised by the members of the school committee. The deed of gift was duly accepted on behalf of the donees and thus it was valid and binding. In any case, the trial Court further held that even though the deed of gift was not a genuine document the plaintiffs having lost their title could not have any declaration of their title or right to partition as they had no existing title in the disputed property and accordingly dismissed the plaintiffs' suit. That is how in short the plaintiffs felt aggrieved and preferred the present appeal.

5. In the appeal before us theprinicpal question that arises for consideration is whether the document of conveyance executed by Amarendra in respect of his 1/3rd share of the dwelling house property is a benami document. From the admitted facts of this case it appears that the brothers inherited the disputed property jointly from their mother. So, this property cannot be the ancestral dwelling house property in the sense that this property was not inherited from a father, paternal grandfather or great grand-father. Nevertheless, even in absence of any evidence the joint and undivided family is the normal condition of Hindu society and the existence of joint estate is not an essential requisite to constitute a joint family as it is well established that a family which does not own any property may nevertheless be joint. (See AIR 1926 Mad 273).

6. At this stage we should notice that there is no evidence either that there was at any time blending of the disputed property with other joint family properties or with other ancestral family properties of the parties so that it could be legitimately inferred that the instant dwelling house property became also the ancestral joint family properties of the parties. Nevertheless, where a Hindu family is joint in mess and estate law presumes that all the properties they are in possession is joint family property until it is shown by evidence that the property acquired by transfer by one of its members is the separate property. The purchase of a portion of the property in the name of one member of the family and the existence of receipts in his name in respect thereof may be perfectly consistent with the notion of its being joint. (See Dhurm Das Pandey v. Mst. Shama Soondri Dibiah, (1843) 3 Moo Ind App 229 (PC); Bodh Singh Doodhria v. Guneshchunder, (1873) 19 Suth WR 356 (PC) ). This, however, is a rebuttablepresumption and the onus may be successfully discharged if it is shown that the nucleus of joint property did not yield any sufficient income for the purpose of acquisition of such property (See : [1955]1SCR1 . Srinivas v. Narayan). We are not, however, concerned with either of these classes of cases for here one co-sharer has sold his undisputed share in a Joint property to another co-sharer which is challenged as a benami document. We have made a brief discussion on the above aspect of the matter as the learned trial Judge, as appears, proceeded on the footing that the disputed property was the ancestral dwelling house property of a Hindu Joint Family and then on assessment of evidence found as a fact that at the material time the brothers were separate ;both in mess and estate. Although this was not a proper finding on the question as to separation of estate, we do not think that would affect the merits of the case. It is fairly settled by now that under the Dayabhaga School of Hindu Law the members of the joint family enjoy and possess their defined shares in joint properties even though undivided without any limitation on their power of disposition of such undivided shares. So. even assuming that the disputed property was ancestral joint family property of the brothers an investigation into the question whether the brothers were separate in mess and property at the material time in our view was not strictly speaking necessary. It is true that on its own finding that there was no partition of the disputed property between the brothers the learned Judge could not have possibly taken the view that the brothers were separate in property at the material time hut that fact by itself could have little or no bearing on the question involved in this case. For, the brothers who are admittedly governed by Dayabhaga School of Hindu Law even if were not separate in their properties, there can be no presumption as a matter of law that the impugned document of conveyance was really a benami document kept in the name of Sachindra by Amarendra. While we say this we must not lose sight of the fact at the same time about the appellants' case that owing to the debts incurred on account of loss suffered in a joint family bus service business plaintiffs' predecessor Amarendra in order to avoid the creditors kept the property in the benam of Sachindra who was acting as Karta of Joint Family. Here again, the business in question cannot be held as joint family business but at best on the evidence adduced can be called a joint business started by both the brothers Amarendra and Sachindra for clearly this business was not started by the paternal ancestor of the brothers. The learned trial Judge, however, held, we think rightly, on assessment of evidence that the business in question was the separate and exclusive business of Amarendra and not a joint business of both the brothers. The story therefore, that Sachindra was acting as Karta has no substance.

7. Now, it has to be seen whether Amarendra executed in respect of his 1/3rd share in the disputed property a registered conveyance which was never intended to be a real deed of transfer but merely a document kept in the benam of his brother Sachindra. In our country there are mainly two types of benami. One is, where the transaction is genuine and real but the purchase of the property is made in the name of a third party by the real purchaser. The other is the transaction itself is not real but fictitious and the document is created for some reason or other only to keep up the appearance of a transfer which is never intended to be acted upon as a real deed of transfer by the parties to the document. We ere concerned here with the latter type of cases. Now, in order to determine this question effectively it is fairly settled that several tests have got to be applied, that is, (I) Whether consideration passed (II) the possession of the parties (III) motive (IV) Custody of the original title deed (V) surrounding cir-custances and subsequent conduct. The learned Judge substantially applied all these tests and found, firstly, that the appellants could not produce the original document of conveyance from their custody which if fictitious ought to have remained in possession of Amarendra and after his death of the appellants. As regards motive the learned Judge found that there was no evidence that there was any other creditor of Amarendra than one Aparnath who was the mortgagee decree-holder and came to the witness box in this case to depose in favour of the appellants and his decree, it was further found, was fully satisfied by Amarendra by sale of his 1/3rd share to Sachindra which is being disputed in the instant case. On the question of passing of consideration the finding of the learned Judge was that Sachindra procured this amount on a promissory note from one Lokenath Mukherjee for which he on the very same date of sale executed a registered mortgage in his favour on mortgage of 2/3rd share of the disputed property, 1/3rd being acquired by purchase from his brother. Lastly, on the question of possession the learned Judge found that though Amarendra and after his death the appellants remained in possession of the disputed property they were merely in permissible occupation having had no Interest in the property end accordingly found that the conveyance was not a benami document.

8. Mr. Banerjee on behalf of the appellants has argued, in the first place, that the question regarding custody of the document was not of any importance In this case as Amarendra died onlyabout a year after the disputed transaction took place leaving his helpless widow and several minor sons with no known sources of income for their sustenance and Sachindra was acting as Karta of the family. We think, although mere absence of custody of the original document by itself cannot be treated as an important factor the question, nevertheless, has to be considered in the light of the evidence relating to other circumstances revealed in this case. Mr. Banerjee has next contended that motive or source or passing of consideration in this case are all mixed up. It is said that there is evidence in this case, even assuming that Amarendra himself was liable and not his brother. Sachindra, that he had debts on account of the-business and such debts would be sufficient to establish the motive behind the whole transaction. Although there is the existence of debt, it is contended, there is no legal evidence to prove that such debt has been satisfied. To be more, precise, the argument is that the-copy of the registered mortgage executed by Sachindra which is the only evidence relating to the passing of consideration and corresponding payment, of the mortgage decree obtained by Amarnath cannot be admissible in evidence without production and proof of the original document in accordance with provisions of Section 68 of the Indian Evidence Act. In support of his contention Mr. Banerjee has relied on a Bench decision of this Court 43 Cal WN 1025 = (AIR 1939 Cal 688) -- Hare Krishna Panigrahi v. Jogheswar Panda -- to show that if a document is required by law to be attested it could not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. Mr. Baneriee has further contended that the copy of the mortgage document in any case is not admissible in evidence under Section 65 of the Indian Evidence Act for the respondents failed to satisfy the Court in this case that the original was lost or could not be procured. It has been pointed out that the original copy was obtained only in 1951 in or about the time when the deed of gift was obtained by the respondents-members of the school. He has drawn support in aid of his contention from a decision of the Supreme Court in : [1966]3SCR283 --The Roman Catholic Mission v. State of Madras -- to show that unless there is a foundation for invoking Section 65 of the Evidence Act there cannot be any question of admitting the copy of the original document. Mr. Ghose on behalf of the respondents-members of the school committee has sought to repel both these contentions relying on a decision of the Supreme Court in : [1972]2SCR646 -- P. C. Purushothama Reddiar v. S. Perumal-- on an argument that the copy of the registered mortgage bond wasadmitted in evidence without objections and therefore admissible in evidence both as regards execution and contents of the document. In this case, it appears that in connection with an election dispute certain police reports were admitted in evidence and marked exhibit without objection. In that context, the Supreme Court has observed that no objection can be raised again as to their admissibility and once a document is properly admitted the contents of that document are also admitted in evidence though these contents may not be conclusive evidence. Both the objections raised by Mr. Banerjee, we think, relate to the method of proof but thedocument in question is not per se inadmissible. Certified copy of the impugned document is admissible in evidence if the original is proved to be lost or destroyed. So, if that method of proof is dispensed with and the documents are admitted in evidence without objection it is not again open to the appellants to object to its admissibility atthe appellate stage. (See 61 Cal LJ 588 = (AIR 1936 Cal 164) -- Dol Gobinda v. Makbul). So, this document has been properly admitted and marked exhibit in this case. But then, as held by the Supreme Court, it may not be conclusive evidence.

9. Mr. Banerjee has, however, next contended that in any case there is variance between the proof and thepleading and on the case made in thewritten statement this evidence of mortgage transaction cannot be looked into to see whether there was payment of consideration for the impugned Kobala by Sachindra. It is said that in the written statement the defendants' specific case was that Sachindra paid the consideration money out of his own resources as he had some business as also he was employed as a teacher of the School. But at the trial they were entirely making out a different case which was not in their written statement on attempting to prove that payment of consideration was made out of a loan incurred by Sachindra on mortgage of 2/3rd share of the disputed property which is not permissible under the law. In support of his contention, Mr. Banerjee has relied on a decision of the Judicial Committee in AIR 1930 PC 57 (1). Siddik Mahomed Shah v. Mt. Saran. Reliance is also placed on a decision of the Supreme Court in : [1951]2SCR277 -- Firm Sriniwas Ram Kumar v. Mahabir Prasad-- and also : AIR1960Cal214 Profulla R. Sarkar v. Hindustan Building Society Ltd. This apart, it is argued, the respondents have failed to Drove the financial condition of Sachindra as stated in the written statement by his daughter. It is said that the very fact that Sachindra had to incur a loan would disprove entirely the case made by them in the written statement for it would be clear that Sachindra had no fund of his own to pay the consideration for the purchase of 1/3rd share of Amarendra. We do not think, there is much of substance in this argument. In the case before the Judicial Committee a new plea, not taken in the defence, was tried to be set up. In that context it was held that no amount of evidence could be looked into upon a plea which was never put forward. In the Supreme Court decision in a suit for specific performance the plaintiff was given a decree for recovery of the amount on the defendants' admission that the money advanced by the plaintiffs was in the nature of loan and not as consideration for sale of the property. It was held that there was nothing wrong in making such a decree even though there was no alternative prayer for recovery of the amount as loan in the plaint. In the Calcutta case no specific plea was taken by the master in his defence for dismissal of the servant on charges of misconduct. All that was said was that the servant's employment was terminated by a notice. So, this Court held following the principles indicated in the above decision of the Judicial Committee that no amount of proof could be looked into when plea of charges of misconduct was not taken in the defence. It would thus appear that while the proposition indicated in these decisions cannot be doubted they are not applicable to the facts of the present case. Here in the instant case, the burden of proving the fictitious nature of the impugned document entirely lay on the appellants and in answer to the appellants' allegations what was asserted in the written statement was that the document was for valuable consideration and it was intended to be operated upon as a real deed of transfer. It may be that in the defence it was asserted that Sachindra had resources but the question whether or not consideration passed is matter of evidence. Merely because evidence was not pleaded as to how consideration passed, we do not think that the Court would be precluded from looking into the evidence if adduced to determine whether the impugned document was executed for consideration or not. All else apart the appellant allowed such evidence namely the certified copy of the mortgage bond to so in evidence without objection. So, it is not open now to the appellants to raise objection that such evidence cannot be looked into on a pleaof inconsistency between pleading end proof or that entirely a new case not taken in the written statement was setUP.

10. Mr. Baneriee has then arguedthat the copy of the suit register (Exhibit h) showing full satisfaction of the mortgage decree obtained by Aparnath was totally inadmissible as such copv was tendered and filed after evidence was closed by both sides. As regards the execution register (Ext. I) showing also the full satisfaction of the mortgage decree of Aparnath it is said that such register could not equally be admitted in evidence and merely the fact that no objection was taken by the appellants could not make the document legally admissible. The decision of the learned trial Judge, it is argued, really rests on these documents as to passing of consideration which are inadmissible. Mr. Baneriee in support of his argument has cited, again, decisions of Judicial Committee as also of the Supreme Court, namely, (1896) 23 Ind App 106, Miller Kishen v. Babu Madho Das, 62 Ind App 180 = (AIR 1935 PC 132) -- Kunwar Basant Singh v. Kunwar Brij Raj Saran Singh and : AIR1954SC606 --Sital Das v. Sant Ram. The last two decisions, however, as appears, relate to the question of admissibility of copy of the evidence under Section 65 of the Evidence Act as discussed earlier. In any case we think even assuming that this is so, the payment of consideration by Sachindra in this case for the impugned document of conveyance stands proved from the copy of the sale deed and the mortgage bond even if other evidence adduced in this case are excluded. While we say this we are not unmindful of the other possible question which might arise which is that these documents recording full satisfaction could not be used as admission of Aparnath without tendering them to him for the purpose of contradiction for the rule provided in Section 145 of the Evidence Act will equally apply to the cases of admission recorded in any previous judicial proceeding. (See : AIR1955Cal206 ). Charandasi Debi v. Kanailal Maitra; 42 Ind App 135 = (AIR 1915 PC 7). Balgangadhar v. Srinibas). It is true that the learned trial Judge had disbelieved the evidence of Aparnath also relying on these documents but even apart from these documents we do not see any reason to accept the evidence of Aparnath regarding payment of his dues for although it is admitted by him that only Amarendra took loan of Rs. 2000/- and suit was filed by him against Amarendra alone he said that mortgage decree was satisfied both by Sachindra and wife of Amarendra in the house of his pleader in 1932. It is difficult to see whyAmarendra who was admittedly alive in 1932 would send at all his wife and why Sachindra who was not the debtor at all accompany her to his pleader's, house. Then again, it is admitted that he asked his pleader to enter full satisfaction which finds support in the recitals both in the copy of the mortgage bond and in the impugned sale-deed. So, this story of payment by the wife of Amrendra and Sachindra together cannot be accepted as true. We therefore think that from the clear statement made by Amarendra in the conveyance executed by him in favour of his brother Sachindra and also the statements in the Mortgage Deed simultaneously executed by Sachindra in favour of Lokenath it is conclusively proved that full consideration passed for sale of 1/3rd share by Amarendra in favour of Sachindra and therefore impugned conveyance cannot be held as a benami document.

11. Mr. Baneriee has further argued that there is no legal evidence in this case to prove that the Mortgage Deed executed by Sachindra in favour of Lokenath was at all a genuine document, for it is pointed out that there is no legal evidence on record to show that Sachindra did in his lifetime ever redeem such mortgage. Mr. Baneriee has also submitted that Lokenath was again, in his turn. Benamdar of the whole family as the share of Parbati, the only son of the eldest brother was purchased by him for Rs. 5,000/- but then he subsequently sold the property again to Sachindra in 1943, though excluding 11 Cottahs of land, only for Rs. 1,900/-. So, it is said that all these-transactions were fictitious and Lokenath himself was acting as Benamdar of the family. We think however, that these questions need not be gone into for they are neither in the pleadings nor they are in issue in this case. At any rate, even if the mortgage in favour of Lokenath has remained unredeemed so far, although Ira Devi Sachindra's daughter-has, stated in her evidence that this mortgage was redeemed and her father again created a mortgage in respect of this property, borrowing a certain sum from an Attorney of this Court which was subsequently also redeemed, that would really affect the title of Sachindra and not of the plaintiffs. So also the mere fact that Parbati's share was sold at a lesser price to Sachindra by Lokenath could be of little assistance to the plaintiff's case. Considering the matter from this aspect also we do not think there is much of substance in these arguments.

12. It now remains to be seen whether the long and continued possessionom of property in dispute of the plaintiffs or their predecessor Amarendra even after the execution of the impugned document of conveyance would have such an impact upon the question of title of Sachindra as to constitute the impugned document merely as a benami transaction. Learned trial Judge, however, relying on evidence of Ira Devi held that Sachindra, out of pity end human consideration for his brother and for his family which consisted of his minor sons and widow after his death allowed them to stay on in the disputedpreises only as a licensee. But her testimony is not corroborated by any other evidence on record. On the contrary, as appears from Exhibit 'G' in response to the proposal for making a gift to Sachindra, the School Committee passed a resolution for requisition of the entire premises as at the material time, it is stated, the Headmaster meaning Sachindra could not evict certain tenants and some of his distant relatives from the house. It is undisputed that these distant relatives are the appellants, who it seems clear from this letter, were not really occupying the premises merely under permission of Sachindra and Sachindra had no control over their possession of the disputed premises. TheSchool Committee, it also appears from this resolution, had notice of such forcible occupation of the plaintiffs and wanted to get rid of them through the help of the State Government by requisition of the disputed property. Then again, if Sachindra was so large-hearted as to allow the widow and sons of his brother to stay on in the premises then why on earth he should all on a sudden turn inimical towards them and make a charity of this property to a School by driving those very persons who were object of so much sympathy and affection out of this old undivided dwelling house of the parties. There is no explanation for it. There is also no evidence on record to show that Sachindra at any time demanded possession on revocation of so nailed license of the plaintiffs. So, it seems clear that Sachindra could not oust the plaintiffs from the disputed property and that is why the School Committee wanted to get rid of these plaintiffs by requisitioning the property. We are therefore, unable to hold in agreement with the learned trial Judge that the plaintiffs continued to possess the property merely as a licensee; even so we do not think such possession, though, forcible or wrongful would tend to prove that the document of conveyance which was executed by Amarendra for valuable consideration was a benami document. If the plaintiffs have continued to possess the property forcibly for all theseyears such possession, may be a good defence in an action for ejectment or even the plaintiffs may acquire a lawful title by adverse possession but that is not the issue in the present case. For, it is well established that where there is a clearpicture as to source or passing of consideration in a transaction, long and continued possession of the parties trying to set up benami though an important element for consideration does not raise any presumption in favour of benami. (See Durga Charan Chunder v. Kharda Co. Ltd., 20 Cal WN 254 = (AIR 1916 Cal 367)). In our opinion, therefore, the impugned document of conveyance cannot be held as a benami document, even though the plaintiffs are found to be continuing in their possession in respect of the disputed property not as a licensee.

13. The other point that was--considered by the learned trial Judge was, whether the Deed of Gift in favour of School made by Sachindra was valid. Here also the appellants failed to establish their case. On consideration of evidence of relevant materials on record, the learned trial Judge held, we think rightly, that Sachindra neither was insane nor Deed of Gift was obtained from him by perpetrating fraud or exercising undue influence by the members of the School Committee. On a fair reading of the evidence we are unable to take a view different from that of the learned trial Judge. It is, however, argued by Mr. Banerjee that the condition for making a sift namely that Sachindra would get Rs. 150/- per month during his lifetime was not fulfilled as appears from the resolution of the School Committee (Ext. K). Instead, the Deed of Gift was obtained at the time when Sachindra was seriously ill as admitted by Mahendra. President of the School and also his daughter Ira Devi without any such condition. It is said _ that in spite of such resolution for obtaining the gift on the condition set up by Sachindra, there is nothing on record to show why such a documentwas executed by him without any condition. It is therefore argued that Sachindra executed such a Deed of Gift without having proper and sufficient mental capacity due to his illness and surely at any rate became the victim of fraud andundue influence exercised by Mahendra.and other interested members of the School Committee. We are unable to accept this contention as correct, for Ira Devi, Sachindra's own daughter has stated clearly in her evidence that she waspresent at all material time during the illness of her father and knew everything about the execution of the Deed of Gift. We are not prepared in thefacts and circumstances of this case toreject her testimony for it is she and notthe plaintiffs whose interest was most affected by such & Deed of Gift. It seems quite clear, but because of this Deed, she would have undoubtedly inherited her father's property.

14. On the question whether there was acceptance of the Deed of Gift we agree for the reasons given by the learned Judge that the Deed was validly accepted on behalf of the School.

15. This apart, the learned Judge has held, we think rightly, that the appellants have no locus standi to challenge the validity of the Deed of Gifteven if it is found that such ,a Deed was not genuine or a valid document for theappellants must prove their own title. Since, in this case the plaintiffs failed to establish that the impugned conveyance executed by the plaintiffs' predecessor Amarendra is a Benami document, it isnot again open to them to establish suchtitle only by attacking the validity ofthe Deed of Gift executed in favour of the respondent-members of the School Committee by Sachindra.

16. As regards the title of the defendants 10 to 16, for the reasons given by the learned trial Judge, we fully agree and hold that they have acquired good title in the respective lands so purchased by them.

17. The result is, the appeal fails and is hereby dismissed. But considering the facts and circumstances of this case we direct the parties to bear their own respective costs throughout.

A.N. Banerjee, J.

18. Iagree.


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