CHITTATOSH MUKHERJEE, B. N. MAITRA ( 1 ) THE plaintiff has alleged that his father, Baul Chandra Addy, was a rich man. He acquired considerable properties and had a very lucrative business in jewellery and money lending etc. at 50, Karaya Road and 40/2, Beltala Road, Calcutta. After the death of the plaintiff's mother, which took place on the 23rd March 1923, Baul Chandra became indifferent and thus his properties and business were left in the hands of his sons, Nagendra Nath (defendant no. 1) and Pulin Behari (defendant no. 2 ). Thus they came to possess their father's ornaments, valuable articles, documents etc. While Pulin was in charge of the properties, the premises Nos. 44, 46 and 48, Beck Bagan Row, Calcutta, were acquired by Baul Chandra in the benami of his son, Pulin Behari. Baul Chandra built valuable structures thereon. Those properties were in the join t possession of the parties. During the riot which, broke out in 1946, the jewelleries etc. were left in the custody of Pulin Behari and he is bound to account for the same. Baul Chandra died on the 14th March, 1953. But long before his death he became mentally feeble and unsound. His eyesight became defective and he suffered from mental aberration. By practicing fraud, misrepresentation and undue influence, Rabindra Nath, defendant no. 3, one of the sons of Baul Chandra, obtained a false and fraudulent deed of gift (dated 11-4-1951) regarding the premises nos. 43 and 97, Karaya Road, Calcutta. That transaction is void and it was never acted upon. Those premises are the joint properties of the parties. The plaintiff has instituted the suit for partition. ( 2 ) DEFENDANT No. 1, Nagendra Nath, has filed a written statement stating that the properties at 44, 46 and 48, Karaya Road are the self acquired properties of Pulin Behari. ( 3 ) DEFENDANT No. 2, Pulin Behari, has put in a written statement denying the plaintiff's allegations. His defence is that the himself purchased the properties of premises Nos. 44, 46 and 48, Beck Bagan Row with his own money and his father contributed nothing in making the purchase. ( 4 ) DEFENDANT No. 3, Rabindra Nath has filed a written statement stating that the deed of gift executed by his father is a valid one. There was no forgery, fraud, misrepresentation or undue influence. 44, 46 and 48, Beck Bagan Row with his own money and his father contributed nothing in making the purchase. ( 4 ) DEFENDANT No. 3, Rabindra Nath has filed a written statement stating that the deed of gift executed by his father is a valid one. There was no forgery, fraud, misrepresentation or undue influence. ( 5 ) THE learned Subordinate Judge framed issues inter alia on the questions whether the premises nos. 44, 46 and 48, Beck Bagan Row were acquired in benami by Baul Chandra, whether the deed of gift was a void document and whether the defendants were liable to render any accounts. After considering the oral and documentary evidence he arrived at the findings that the premises nos. 44, 46 and 48, Beck Bagan Row were not the self acquired properties of Pulin Behari. Baul Chandra was the real purchaser. The deed of gift was validly executed in favour of Rabindra Nath. He had mental capacity to execute the deed of gift. He stated that in view of th4 evidence given by the plaintiff, he was bound to render accounts for the period after the 14th March, 1953, when Baul Chandra died. Against the said decision the defendants No. 2 has preferred the present appeal. ( 6 ) THE plaintiff has filed a cross-objection stating that the deed of gift executed by his father is vitiated by fraud, undue influence and misrepresentation. He is not entitled to render any accounts. The ornaments and assets had been misappropriated by Pulin Behari and hence, he is entitled to recover the same. ( 7 ) IT has been contended on behalf of the appellant that the question of onus was not properly appreciated by the learned Subordinate Judge. In view of the decision of Venkatram Ayyar, J, in the case of Meenakshmi Mills Ltd. v. Commissioner of Income Tax in 1956 S. C. A. 1139, there are two classes of benami transactions, one in benamdar's name and that is a real transfer intending that title would pass. The other classes of transactions are incorrectly called benami because they are sham transfers in which the transferor retains title. In the first class of cases, the question arises, who paid the consideration and in the latter one, the point is, if any consideration and in the latter one, the point is, if any consideration was paid. The other classes of transactions are incorrectly called benami because they are sham transfers in which the transferor retains title. In the first class of cases, the question arises, who paid the consideration and in the latter one, the point is, if any consideration and in the latter one, the point is, if any consideration was paid. Reference has been made tot eh case in A. I. R. 1926 P. C. 77 at page 78 to show that when benami is pleaded, the same has to be proved beyond reasonable doubt. The plaintiff could not prove beyond reasonable doubt that the properties at 44, 46 and 48, Beck Bagan Row had been acquired by his father, Baul Chandra Addy. The evidence of the P. Ws. Cannot be believed. There is no motive for making such benami purchase. Pulin Behari examined his father-in-law and sister to show that he had money and loans ha been taken. He acquired dowry at his marriage to the extent of Rs. 3,500/ -. He also received ornaments of the value of Rs. 2,000/ -. Moreover, he took a loan of Rs. 2,000/- from Dr. Panch Kari Mallick, his brother-in-law, and a sum of Rs. 500/- from his sister. There is no reason why the evidence of these witnesses should be disbelieved. He used to carry on his separate pawn business form the first floor of Baul's house at 50, Karaya Road. The learned Subordinate Judge should have believed this evidence and arrived at a decision that it was his self-acquired property. ( 8 ) IT has been contended on behalf of the plaintiff-respondent that the case of Gopi Krishna v. Ganga Prosad in 6 M. I. A. 53 shows that the test is the source of the consideration. A decree for accounts was wrongly passed against him. Moreover, the letters, Ext. 5 series, show that defendant no. 3, Rabindra Nath, married against the wishes of his father and thereby his father became angry with him. In that view of the matter, it cannot be believed that he would voluntarily make any such deed, Ext. C/3. That is a forged document. It is an unnatural disposition. At all events, the Court will have no hesitation in arriving at the conclusion that it was obtained by practicing fraud, misrepresentation and undue influence. In that view of the matter, it cannot be believed that he would voluntarily make any such deed, Ext. C/3. That is a forged document. It is an unnatural disposition. At all events, the Court will have no hesitation in arriving at the conclusion that it was obtained by practicing fraud, misrepresentation and undue influence. P. W. 1, Debendra Nath Addy, plaintiff, has stated in his evidence that in February, 1951, Rabindra took his father to Ghatsila to Calcutta, returning from Ghatsila to Calcutta, that forged and fraudulent deed of gift was executed. The evidence given by Doctor Rabin Addy cannot be believed. ( 9 ) IT has been argued on behalf of the respondent, Nagendra Nath that though he filed a written statement supporting Pulin Behari, he gave evidence before the learned Subordinate Judge supporting the plaintiff's version. Reference has been made to the provisions of section 58 of the Indian Evidence Act and Order 8 Rule 5 of the Code of Civil Procedure. Though such Code of Civil Procedure. Though such admission was made by Nagendra Nath in his written statement, that is not conclusive and title cannot pass by admission because the statute requires a deed in that respect. Reference has been made to the case of Muhmmad Iman Ali Khan v. Hussain Khan in I. L. R. 26 Cal. 81 P. C. in this respect. It has been contended that the evidence on the record clearly shows that it was a benami purchase. The plaintiff's allegation of benami purchase by Baul Chandra is also being proved by the testimony of D. W. 7, Rabindranath Addy, defendant no. 3, because he has stated that in his address as 44, Beck Bagan Row. ( 10 ) THE learned Advocate, appearing on behalf of the defendant, Rabindra Nath, supported the decision of the learned Subordinate Judge. ( 11 ) BEFORE entering into the facts of the case and dealing with the points of law, the submissions advanced on behalf of Nagendra Nath may be disposed of. A reference to the provisions of section 58 of the Indian Evidence Act and of Order 8 Rule 5 of the Civil Procedure Code is irrelevant and misconceived because here nobody claims that title would pass by admission. Nagendra Nath filed a written statement in Pulin Behari's favour. A reference to the provisions of section 58 of the Indian Evidence Act and of Order 8 Rule 5 of the Civil Procedure Code is irrelevant and misconceived because here nobody claims that title would pass by admission. Nagendra Nath filed a written statement in Pulin Behari's favour. In the normal course he would have acquired 1/4th share in the property, if the story of benami purchase made out by the plaintiff be established. At the trial, he joined the plaintiff's camp. In view of the departure in his pleading and evidence, no reliance can be placed on his testimony. Suffice it say that he is not at all a truthful witness. Hence the evidence of this type of witness on the point of benami does not require any consideration by us. ( 12 ) D. W. 7, Rabindra Nath Addy, says that his letter-head contains his address as 44, Beck Bagan Row. That letter head, i. e. , the primary evidence, has not been produced. So, by applying rule of production of the best evidence this question should not have been allowed by the learned Subordinate Judge. ( 13 ) NOW about he point of Law. The submissions made on behalf of the appellant, that the case of benami has to be proved beyond reasonable doubt, finds support form the decision of the Judicial Committee in A. I. R. 1926 P. C. 77 (supra ). But this view is opposed to the observations of Lord Hobhouse in the case of Uma Prasad -vs- Gandharp Singh in LR 14 IA 127 and of Lord Shaw in the case of Hakim Khan -vs- Bharat in 23 CWN 321 PC, and these observations have been consistently followed by our Court. It will be sufficient to refer to the Bench decision of Bhuban Mohini -vs- Kumuda in 28 Calwn 131 at page 135. Sir Ashutosh Mukherjee presiding over the Bench has stated that benami transactions are very familiar in Indian practice and hence slight quantity of evidence is necessary to show that a transaction is a benami one. The decision must rest on legal grounds based on legal testimony and not on suspicion. It seems that in a civil suit the court should decide according to the preponderence of probability. This is not a criminal proceeding where the case has to be proved beyond reasonable doubt. The decision must rest on legal grounds based on legal testimony and not on suspicion. It seems that in a civil suit the court should decide according to the preponderence of probability. This is not a criminal proceeding where the case has to be proved beyond reasonable doubt. ( 14 ) BUT it is necessary to point out that in the case of Gangadhar -vs- Subramania in AIR 1949 F. C. 88 at page 92, it has been stated that in the case of benami, the test is the source of consideration and it must be strictly made out. In the case of Joydayal -vs- Bibi Hazra in AIR 1974 SC 171 that the burden has to be strictly discharged. It may be stated that in the case of Debattam -vs-Union of India in AIR 1964 S. C. 80 at page 85, a balance has been struck. It has been observed that the question of onus is important in the early stages of the case. It may assume importance where no evidence is led. But where evidence has been led, abstract considerations of onus are out of place and the case has to be decided on the evidence adduced. This decision was followed by Shinghal, J, in the case of Union of India reported in AIR 1977 SC 409 at page 413 and by Untwalia, J, in the case of Bibi Fatima -vs- Md. Hasan in AIR 1978 SC 1362 at page 1378. There is difference between burden and onus of proof. So, the question of onus is of no importance at this stage of the proceeding and the question of benami has to be decided on a consideration of the entire evidence on the record. ( 15 ) IN the case of Dilip -vs- Nawaz Kunwar reported in ILR 30 AII. 258 PC at page 266, Sir Arthur Wilson has stated that when the evidence adduced by the parties is not convincing and is open to criticism, the Court should rely on the surrounding circumstances, the position of the parties, their relation to one another, the motive which governs their action and their subsequent conduct. Venkataramiah, J, had stated in the latest case of Bhim Singh -v- Kan Singh in AIR 1980 SC 727 that in benami case the source of the money is the most important test. Venkataramiah, J, had stated in the latest case of Bhim Singh -v- Kan Singh in AIR 1980 SC 727 that in benami case the source of the money is the most important test. The court has to take into consideration the possession of the property, the motive governing the transaction the position of the parties the custody of the document and the parties' conduct in dealing with the property, i. e. , the surrounding circumstance. Let these principles be applied to the facts of the case. ( 16 ) PW 1, Debendra Nath, is the plaintiff. He has stated that his father made a benami purchase and his brother, Pulin Behari, had no means to make any purchase. After their mother died, his father's business came to be managed by Pulin Behari and Nagendra Nath and his father's business did not cease to exist after 1927. D. W. 4, Pulin Behari Addy, has stated that in 1927, his father's business was abolished. P. W. 2, Rajendra Nath, who is a disinterested witness, says that Baul, Pulin and Nagen Addy used to sit in that shop and Baul Babu looked after his business and ran his shop till the communal riot broke out in 1946. PW 3 Promode's evidence shows that Baul's gold and silver business was abolished only during the riots of 1946. ( 17 ) DW 4, Pulin Behari, has stated in his evidence that the received a sum of Rs. 2,000/- from his grand-mother and a cash dowry of Rs. 3,500/- from his father-in-law, DW 5, Panch Kari Dey. JThe latter also gifted ornaments of the value of Rs. 2,000/- at his marriage. He also borrowed money to the tune of Rs. 2,000/- from his brother-in-law, Dr. Panch Kari Mallick, and a sum of Rs. 500/- from his sister, DW 6, Sudhira. He ran his pawn business and sale of gold from the first floor of his father's house at 50 Karaya Road. It will be pertinent to point out that the existence of any such business does not find place in the written statement. In the case of Siddak Mohomed -vs- Mt. Saren in AIR 1930 P. C. 57, it has been stated that where a claim has not been made in the defence, no amount of evidence in this respect can be looked into. In the case of Siddak Mohomed -vs- Mt. Saren in AIR 1930 P. C. 57, it has been stated that where a claim has not been made in the defence, no amount of evidence in this respect can be looked into. The learned Subordinate Judge, who had the opportunity of witnessing the demean our of D. W. 4, Pulin Behari, D. W. 5, Panch Kari, and DW 6, Sudhira, disbelieved their testimony. DW 5, Panch Kari Dey, started his career as an ordinary clerk with a pay of Rs. 80/- per mensum. He has 14 children of whom 8 are married daughters. He does not know when his last child was born. He remembers nothing regarding the dowry and the ornaments given during the marriages of his daughters barring the case of his 3rd child, who is Pulin Behari's wife. His evidence was rightly disbelieved. He was definitely suffering from lapse of memory. ( 18 ) THEN about the testimony of DW 6, Sudhira. She says that Rs. 2,000/- had been taken as loan by Pulin Behari from her husband, Dr. Panch Kari Mallick, and Rs. 500/- from her. She says that no document was effected for the purpose. Though the particulars of the other amounts were given in the written statement filed by Pulin Behar, he did not state therein that the had received Rs. 2,000/- from Dr. Panch Kari Mallick and Rs. 500/- from Sudhira. She says that her father was indebted and he told her that he had no money. Now, the alleged statement of her deceased father is not admissible in evidence because it is not covered by any of the sub-sections (1) to (8) of section 32 of the Evidence Act. If Baul was really indebted, he would not have maintained all his sons. ( 19 ) DW 4, Pulin Behari, is not even a Matriculate and was not a service holder. At once the question arises, whether he had the necessary wherewithal to make those three purchases by the disputed documents, Exts. E/2, E/2/1 and Ext. E/2/2. He has stated that after purchasing the property from the CIT he spent money and raised construction thereon and from 1931 to 1932, monthly earning to his business varied from Rs. 30/- to Rs. 35/ -. In order to make the purchase, he approached his grand-mother and she gave him a sum of Rs. E/2, E/2/1 and Ext. E/2/2. He has stated that after purchasing the property from the CIT he spent money and raised construction thereon and from 1931 to 1932, monthly earning to his business varied from Rs. 30/- to Rs. 35/ -. In order to make the purchase, he approached his grand-mother and she gave him a sum of Rs. 1,500/- in Falgoon or Chaitra, 1335 B. S. His written statement shows that his grand-mother gave him Rs. 2,000/ -. His written statement does not give the names of the friends and relations from whom he received loans. If he had sufficient money to acquire the properties, it cannot be believed that the was still dependent on his father up to November, 1946. He says that he himself spent nothing in this regard. ( 20 ) HE has also stated in his cross-examination that he never had any bank accounts or licence of his alleged business and he has no papers to show his income. No customer of his alleged pawn business has been examined as DW. There is no cogent and succinct evidence to show that he spent money and made the constructions on that property at a considerable cost. ( 21 ) LET it be seen what is the internal evidence in this respect. If the said acquisition was made by Pulin Behari from his own fund and it was his separate property, in the normal course, it would be expected that the premises nos. 44, 46 and 48, Beck Bagan Row would constitute separate blocks. But he has admitted in his evidence that the house at Nos. 50, 42a, 44, 46 and 48 constitute a compact block and these premises have a common sewer. It is the parties case that Baul and his sons lived at 50 Karaya Road. ( 22 ) LET us now see if Baul Chandra was in the habit of acquiring benami properties and if he made other benami transactions. It is common ground that previously, Baul Chandra acquired a property in the name of his wife. Baul Chandra was the owner of the premises nos. 97, Karaya Road. The registered deed of lease, Ext. 2, executed on the 11th September, 1923, discloses that Debendra, plaintiff, executed a document of lease regarding that property in favour of a tenant, viz. , S. Wasarstin. The other deed of lease, Ext. Baul Chandra was the owner of the premises nos. 97, Karaya Road. The registered deed of lease, Ext. 2, executed on the 11th September, 1923, discloses that Debendra, plaintiff, executed a document of lease regarding that property in favour of a tenant, viz. , S. Wasarstin. The other deed of lease, Ext. 2/a, executed on the 11th March, 1925, regarding the property at 95/2, Karaya Road belonging to Baul Chandra was dealt with by defendant no. 1, Nagendra Nath Addy, in favour of the tenant, Mrs. Funny Knobbs. The document, Ext. 2/b, is a registered deed of lease executed by his father, Baul Chandra Addy, in favour of the plaintiff, Debendra Nath, on the 11th August, 1919, regarding the property at 97 Karaya Road. The other document put in by the plaintiff is Ext. 2/c. On the 6th June, 1923, Nagendra executed that lease for the premises no. 95, Karaya Road in favour of Mrs. Anna Volevitch. In all of these documents, the address of the executants had been given at 32, Taltola Bazar Street, Calcutta, where Baul Chandra's father-in-law lived, though Baul Chandra and his sons used to live at 50, Karaya Road at that time and also when the properties in question were acquired. The same address will appear from the disputed documents, Ext. E/2, E/2/1 and E/2/2, executed on 31-10-1931, 14-5-1932 and 31-10-1932. This is also indicative of a benami transaction. The aforesaid evidence shows that Baul Chandra allowed his sons to deal with his properties and make benami leases. ( 23 ) BAUL's collection papers show that his monthly income from his house properties was Rs. 575/- D. W. 4, Pulin Behari, says that his father's monthly income was Rs. 500/-or so. ( 24 ) THUS, from the aforesaid discussions, it is clear that apparent is not the real state of affairs. We believe the plaintiff's version and find that Baul Chandra's business continued before and after 1931-32, that the properties at 44, 46 and 48 Beck Bagan Row were purchased by him from the income of such business and the source of the money did not come from Pulin Behari. ( 25 ) THEN about the question of possession of the property. We can refer to the decision of R. C. Mitter, J, in the Bench case of Jay Chand -v- Gol Govinda in A. I. R. 1944 Cal. 272 at page 276. ( 25 ) THEN about the question of possession of the property. We can refer to the decision of R. C. Mitter, J, in the Bench case of Jay Chand -v- Gol Govinda in A. I. R. 1944 Cal. 272 at page 276. In that case, the property stood in the wife's name. It has been stated that in view of the relationship of the parties, the fact of possession of the property and the custody of the title deeds are nothing go to show that it was a benami transaction. The facts that rent receipts were issued in her name or she had figured as the plaintiff in rent suits or that her name was recorded in the record of rights as the owner of the property are also in consonance with benami usage. The point is, who paid the money and the party's conduct has to be seen. It has already been indicated that there was only one compact block and a common sewer. So, in such circumstances the point of possession is not of any consequence. ( 26 ) SIMILAR observation may be made regarding the question of custody of the document coming from Pulin Behari's possession and it is not necessary to dilate any more on this. ( 27 ) THEN about the test of motive for the transaction. P. W. 1, Debendra Nath has stated that his father was an assessee of the Income Tax Department and so, he made the benami transaction. Moreover, it has already been indicated that Baul Chandra Addy was in the habit of acquiring benami property and he also allowed his sons to make the benami transactions. ( 28 ) THE question of relationship of parties has already been dealt with. ( 29 ) LASTLY about the conduct of the parties and the surrounding circumstances. This has already been dealt with in a round about way because there was a compact block and the sewer was common. Baul Chandra Addy maintained his sons including Pulin Behari's family up to November, 1946. The evidence of P. W. 1, Deben and of D. W. 4, Pullin Behari, shows that they used to let out their father's houses to tenants. ( 30 ) IT is common case that Nirmal's mother used to cook in Baul's family. The letter, Ext. Baul Chandra Addy maintained his sons including Pulin Behari's family up to November, 1946. The evidence of P. W. 1, Deben and of D. W. 4, Pullin Behari, shows that they used to let out their father's houses to tenants. ( 30 ) IT is common case that Nirmal's mother used to cook in Baul's family. The letter, Ext. D/2/13 dated 24-2-1931, written by the Estates Manager of the C. I. T. shows that no portion of the purchase money had been paid by her. This is admissible as resgestae under section 6 of the Indian Evidence Act. That shows that she was also a name lender and had no interest in the property. The learned Advocates, appearing on behalf of the parties, did not mention her name in their arguments. ( 31 ) THUS, from the aforesaid discussion, the contention put forward on behalf of the appellant, cannot be sustained. We believe the evidence of the P. Ws. In this respect, reject the testimony of the aforesaid D. Ws. and find that the premises nos. 44, 46 and 48, Beck Bagan Row were acquired by Baul Chandra in Pulin Behari's benami and they were not the separate properties of Pulin Behari. ( 32 ) THEN about the cross-objection filed by the plaintiff. The learned Advocate, appearing on behalf of the appellant, has stated that the deed of gift dated 11-4-1951, Ext. C/3, is a forged document. But the ground of forgery has not been taken in the cross-objection, where it has been stated that that deed is vitiated by fraud, misrepresentation and undue influence. No particulars of the fraud have been given. In the case for Bhuban Mohini -vs- Kumuda (Supra), it has been stated that a party can make out inconsistent pleadings, but he does so at his peril. The cases of forgery and of obtaining a document by undue influence etc. are mutually destructive. In the case of Bishen Deo in A. I. R. 1951 S. C. 280 at page 283, Bose, J, has stated that the pleas of undue influence and fraud must be separately pleaded and full particulars thereof have to be given in the pleadings and the case can be decided only on the particulars laid down in the pleadings. No departure therefrom in the evidence is permissible. No departure therefrom in the evidence is permissible. In the case of Subhas v. Ganga Prosad in A. I. R. 1967 S. C. 878, G. K. Mitter, J, has stated that in a case of undue influence, the Court should see three things, firstly the relationship between the parties in order to consider if one could dominate the will of the other. Secondly, if the donee used that position to gain an undue advantage over the donor and thirdly , on whom is the onus. There is no presumption of undue influence merely because the parties are related to one another or merely because the donor is of weak character or old. It has also been stated that the Court must scrutinize the pleading to see if undue influence has been pleaded and particulars given before examining the question if undue influence was exercised. These elements are wanting in this case. ( 33 ) THE learned Advocate, appearing on behalf of Debendra, became vociferous regarding the letters, Ext. 5 series. He has stated that these letters themselves show that Rabindra Nath married against the wishes of his father and thereby Baul Chandra became displeased with him. But Debendra Nath, P. W. 1, has stated in his evidence that in February, 1951, his father went to Ghatsila for about three weeks and thereafter he returned to Calcutta. So, if Baul Chandra became angry wit Rabindra Nath because of the marriage, his wrath had abated when he had gone to Ghatsila for a change and for medical treatment with Rabindra Nath. ( 34 ) P. W. 1, Debendra Nath, has stated that subsequently, his father became a lunatic. He used to walk stark of a mad man. But he says that he did not make any special arrangement for Baul's medical treatment. His version has not been supported by any other P. W. No. D. W. also says so. D. W. 4, Pulin, also says that his father had made such gift. ( 35 ) LET us analyse the plaintiff's conduct in this respect. At present there is no denial that the house at 97 Karaya Road was requisitioned by the Government. Subsequently, the Arbitration Case No. 87 of 1949 was initiated by the State of West Bengal against Baul Chandra before the Land Acquisition Collector, Alipore, regarding the compensation money for that requisition. It appears from Ext. At present there is no denial that the house at 97 Karaya Road was requisitioned by the Government. Subsequently, the Arbitration Case No. 87 of 1949 was initiated by the State of West Bengal against Baul Chandra before the Land Acquisition Collector, Alipore, regarding the compensation money for that requisition. It appears from Ext. J/3 that in that arbitration case the plaintiff intervened, challenged that deed of gift and stated that that document was only a paper transaction made with a view to avoiding the estate duty etc. The defendant no. 3 put such statement in his cross-examination according to the provisions of section 145 of the Indian Evidence Act. P. W. 1, Debendra Nath, pretends not to recall whether he had filed any such objection in the land acquisition case. When this suit was filed, the plaintiff came up with a story that the document was vitiated because fraud, misrepresentation and undue influence were exercised and it was a forged document. He had not the hardihood of stating in his evidence that it was a forged document. When his father's signatures in the deed of gift were shown to him, he stated that the could not state if that was his father's signature. ( 36 ) THE learned Advocate, appearing on behalf of Debendra, has stated that the plaintiff could not apply for the services of a handwriting expert because the deed of gift was not inspected by him in time. The provisions of Order 11 of the Code of Civil Procedure could have been availed of by him. He could ask for the appointment of a handwriting expert. The admitted signatures of Baul Chandra in the cheques, Ext. 1 series. Are before the Court. Any way, Baul Chandra's signatures in the deed of gift. Ext. C/3, have been examined by us. In the Bench case of Bisweswar v. Nabadwin Chandra in 64 C. W. N. 1067 at page 1080, it has been stated that it is the duty of the Court to use it s eyes and compare the disputed signature with the admitted signatures of Baul Chandra in the cheques. Ext. 1 series, with those appearing in the deed of gift, Ext. C/3, we find no dissimilarity. ( 37 ) EVEN D. W. 1, Nagen, has stated that such gift was validly made and he was an attesting witness. Ext. 1 series, with those appearing in the deed of gift, Ext. C/3, we find no dissimilarity. ( 37 ) EVEN D. W. 1, Nagen, has stated that such gift was validly made and he was an attesting witness. Similar statement has been made by D. W. 7, Rabin Addy. The P. W. 3, Promode, says that Baul's eye sight became weak, but still he "had the capacity to understand properties and deeds". After the aforesaid compensation case was initiated against Baul Addy, he wrote the letter, Ext. F/3, that he had gifted the property to Rabin. ( 38 ) IT appears from the record that Rabindranath's name regarding the property covered by the deed of gift has been mutated with the Corporation of Calcutta, vide the receipt 'b' series. He is in peaceful possession of the properties covered by the deed of gift. ( 39 ) THE decision of the learned Subordinate judge in this respect is not erroneous. Hence, the argument advanced on behalf of the plaintiff cross-objector, is not accepted. We believe the evidence of D. W. 7, Rabindra Addy, and hold that the deed of gift, Ext. C/3, was validly executed and attested, that Baul had mental capacity to execute it, and it was not obtained by practicing fraud, misrepresentation and undue influence and it is not a void document. ( 40 ) THEN about the other submissions advanced on behalf of the cross-objector, Debendra. The learned Subordinate Judge did not grant any decree regarding the ornaments and other valuables. No grievance has been made in this respect. PW 1, Debendra, has stated in his evidence that there was no duty to render accounts till Baul Chandra was alive. The latter expired on the 14th March, 1953 and hence, the accounts had to be submitted by the plaintiff after that period. These directions are correct. But he should have given direction to render accounts amicably first. So, his decision requires modification to that extent only. ( 41 ) THIS disposes of all the arguments advanced on behalf of the parties. ( 42 ) THE appeal and the cross objection be dismissed. The parties will amicably render accounts regarding the joint undivided properties from the 15th March, 1953, within August next, failing which a Pleader Commissioner shall be appointed to take the accounts. ( 41 ) THIS disposes of all the arguments advanced on behalf of the parties. ( 42 ) THE appeal and the cross objection be dismissed. The parties will amicably render accounts regarding the joint undivided properties from the 15th March, 1953, within August next, failing which a Pleader Commissioner shall be appointed to take the accounts. Subject to that modification, the judgment and decree passed by the learned Subordinate Judge be affirmed. ( 43 ) IN a partition suit usually the parties bear their respective costs up to the preliminary stage of the suit. The plaintiff's title to property covered by premises nos. 44, 46 and 48, Beck Bagan Row was denied by Pulin Behari. So, a decree for proportionate costs could have been passed. The plaintiff went to the length of making untrue allegations against his father regarding the gift. Hence, the parties will bear their own cost throughout. ( 44 ) ON the appellant's prayer, let the operation of this judgment be stayed for six weeks from date. Chittatosh Mookerji, J : i agree. Appeal and the Cross Examination dismissed.