MURARI MOHAN GHOSE v. BALAILAL ADAK — 1990 DIGILAW 80 (CAL)

M. G. MUKHERJI, J. ( 1 ) THE defendant Nos. 1 (a) and 1 (c) who are the son and widow of one Bejoy Krishna Ghosh, deceased, impugned in the present appeal the judgment and decree dated 23rd August, 1979 in Title Suit No. 127 of 1975 passed by the learned Judge, 12th Bench, City Civil Court Calcutta. By the said judgment and decree the suit for declaration of title and recovery of possession as filed by the plaintiffs Balailal Adak and Dr. Probhakar Chandra Mondal stood decreed against the present appellants and the respondent Nos. 3, 4 and 5, the heirs and legal representatives of the original defendant Bejoy Krishna Ghosh who died during the pendency of the suit. The suit property originally belonged to one Surendra Nath Ghosh. The said Surendra Nath Ghosh became the sole owner of the property situate at 27, Abinash Ghosh Lane by virtue of a deed of Partition effected amicably between his co-sharers and himself. On 13th January, 1929 the said Surendra Nath Ghosh executed a Will whereby he bequeathed the suit property of his wife Smt. Sukumari Dassi giving her a life estate in respect of the same but clearly giving out that on the death of his wife his only son Bejoy Krishna Ghosh Poali would be getting the said property in absolute right. It is an admitted fact that in 1931 the said Surendra Nath Ghosh died leaving behind him surviving his wife, Smt. Sukumari Dassi and his only son Bejoy Krishna Ghosh. On l0th of April, 1965 Bejoy Krishna Ghosh entered into an agreement to effect sale of the suit property in favour of Balailal Adak and took rupees five thousand (Rs. 5000) as a part of the consideration money. The agreement was a registered one (Ext. 2 ). On 9th June 1965 there was a further agreement between Bejoy Krishna Ghosh and Balailal Adak fu respect of the self same premises No. 27, Abinash Ghosh Lane (Ext. 2 (a)) and a sum of rupees six thousand (Rs. 6000) was received by Bejoy Krishna at the time of agreement. This was also a registered document. On 20th July 1965 a registered deed of conveyance was executed by Bejoy Krishna Ghosh in favour of Balailal Adak and Dr. Probhakar Chandra Mondal for consideration of rupees twenty five thousand (Rs. 2 (a)) and a sum of rupees six thousand (Rs. 6000) was received by Bejoy Krishna at the time of agreement. This was also a registered document. On 20th July 1965 a registered deed of conveyance was executed by Bejoy Krishna Ghosh in favour of Balailal Adak and Dr. Probhakar Chandra Mondal for consideration of rupees twenty five thousand (Rs. 25000) and in the memo of consideration it was specifically given out that the vendor received towards earnest money on 10. 4. 65 a sum of rupees five thousand (Rs. 5000) and received another rupees six thousand (Rs. 6000) on 9. 6. 65 as part payment of the balance amount of consideration and there was a payment of the dues of one Anil Kumar Maity on account of the mortgage of the property which was effected by Bejoy on deposit of title deeds for which a sum of rupees five thousand one hundred and fifty (Rs. 5150) was paid. The memo of consideration further brought it out that a cash payment of rupees eight thousand eight hundred and fifty (Rs. 8850) was effected by the purchasers of Bejoy Krishna in 88 pieces of hundred rupees notes and 5 pieces of ten rupee notes. This registered deed of conveyance is Ext. 1 in the case. Ext. 1 (a) is a draft copy of the selfsame deed of conveyance (Ext. 1) which was duly approved by Bejoy Krishna Ghosh. In the Deed (Ext. 1.); there was a stipulation regarding delivery of possession to the purchasers within one month from the date of execution of the document failing which the purchasers were given the liberty to take legal steps and proceedings against the vendor for getting vacant possession of the premises or any part thereof. In the said deed the existence of the Will was suppressed by Bejoy Krishna Ghosh and on the other hand, he gave out inter alia that his father Surendra Nath Ghosh died intestate in the year 1931 leaving him surviving as his only son and he was the sole heir and successor-in-interest to inherit the said premises No. 27, Abinash Ghosh Lane. On 22nd November, 1965 Bejoy's mother Smt. Sukumari Dassi filed a suit for declaration in the original side of this Hon'ble Court that she was entitled to life estate of the suit premises by virtue of the Will. On 22nd November, 1965 Bejoy's mother Smt. Sukumari Dassi filed a suit for declaration in the original side of this Hon'ble Court that she was entitled to life estate of the suit premises by virtue of the Will. Bejoy Krishna Ghosh was made the defendant No. 1 in the suit and the present plaintiffs Balailal Adak and Dr. Probhakar Chandra Mondal were the other defendants. The suit after a contested hearing was decreed on the 21st May, 1973 and it was ordered and decreed that the plaintiff was entitled to premises No. 27, Abinash Ghosh Lane for her life and she would be entitled to reside and enjoy the said property in an uninterrupted manner during her life time till her death and such enjoyment shall not in any way be interfered with by the defendants Balailal Adak and Dr. Probhakar Chandra Mondal. She will be entitled to realise rents, issues and profits from the suit property during her life time. It was further ordered and decreed that the court did not think it fit to make any order as against the defendant Bejoy Krishna Ghosh. On 11th of February 974 Bejoy Krishna filed Title Suit No. 189 of 1974 in the City Civil Court at Calcutta for a declaration of his title and for permanent injunction. On 26th November 1974 Sukumari the mother of Bejoy Krishna Ghosh, died on 11 28th January 1975 the plaintiffs filed the present suit initially making a layer for delivery of possession by the defendant in respect of the suit premises, but subsequently amending the plaint the plaintiffs claimed declaration of title to the effect that the plaintiffs were the absolute owners of the suit premises under the conveyance dated 20th July, 1965 and also prayed for recovery of possession of the suit premises in Title Suit No. 127 of 1975 in the City Court at Calcutta. But on 2nd May 1975 Bejoy Krishna Ghosh died and the present appellants as also the respondents Nos. 3, 4 and 5 got themselves substituted as heirs and legal representatives of the deceased Bejoy Krishna Ghosh. ( 2 ) THE defence inter alia of Bejoy Krishna was to the effect that the deed of conveyance in question was without consideration and it was an outcome of misrepresentation, coercion and fraud. 3, 4 and 5 got themselves substituted as heirs and legal representatives of the deceased Bejoy Krishna Ghosh. ( 2 ) THE defence inter alia of Bejoy Krishna was to the effect that the deed of conveyance in question was without consideration and it was an outcome of misrepresentation, coercion and fraud. The alleged conveyance was actually intended to be a power of attorney and since he was illiterate and a man of weak intellect and did not have any independent legal advice, the plaintiffs fraudulently represented to him that since he was given nothing by his father and everything was given to his mother and since his mother expressed her desire to effect a sale of the disputed property and to go out on a pilgrimage, he would be left with nothing. He was accordingly induced by the plaintiffs to a execute a power of attorney so as to enable them to fight out litigation on his behalf so that he might not lose the property. It is in that way the deed of conveyance was fraudulently obtained from him. The property was worth more than rupees two lakhs and it could not have been sold out for a sum of rupees twenty five thousand. The inadequacy of consideration itself was sufficient to prove that there was a fraud practised on him. The substituted defendants also filed a separate written statement supporting practically the averments in the original written statement filed by Bejoy Krishna Ghosh. ( 3 ) THE plaintiff No. 1 Balailal Adak examined himself as P. W. 1 in the case and proved the material averments in the plaint. He also proved the payment of consideration money on different dates. P. W. 2 was one Akshoy Kumar Mukherjee who was a practising Advocate. He testified to the effect that he drafted the deed of conveyance at the instance of Bejoy Krishna Ghosh in favour of the present plaintiffs. He also proved the facts and circumstances under which the draft was approved by Bejoy Krishna. He was also present at the time of registration of the conveyance (Ext. 1) to which he was a witness. Murari Mohan Ghosh, the son of Bejoy Krishna Ghosh, was alone witness examined on behalf of the defendants. He also proved the facts and circumstances under which the draft was approved by Bejoy Krishna. He was also present at the time of registration of the conveyance (Ext. 1) to which he was a witness. Murari Mohan Ghosh, the son of Bejoy Krishna Ghosh, was alone witness examined on behalf of the defendants. His version was that his father used to reside at 19, Goabagan Street, Calcutta, with a concubine and he always used to be in a drunken state and did not have any capacity to execute any sale deed in respect of the disputed property. He estimated the valuation of the property to be about rupees seven lakhs and even at the relevant time of the transaction its value was about Rs. 2 to Rs. 2 1/2 lakhs. His evidence, however, was in the nature of hearsay when he testified to the effect that he heard from his father about the nature of the transaction. He was only aware that his father filed a suit for cancellation of the deed of conveyance and that suit was filed after the death of his paternal grandmother. Though after the death of his further, his heirs were substituted in his place in the said suit, they later on withdrew the same. He was not aware whether his father ever mortgaged the property to Anil Maity by depositing the title deeds. ( 4 ) THE learned trial Judge on sifting of the evidence, oral and documentary, came to a finding that there was no dispute on the point that the signatures in the conveyance (Ext. 1) were of the original defendant Bejoy Krishna Ghosh. The learned trial Judge was of the further view that the case of misrepresentation, undue influence on even coercion could not be proved by the defendants and even the plea of misrepresentation as was there in the original written statement filed by Bejoy Krishna that he was made to sign on a purported power of attorney and he did not know the contents thereof, was not substantiated by any direct evidence on the point. The trial court concluded that the deed of conveyance (Ext. The trial court concluded that the deed of conveyance (Ext. 1) was, in fact, executed by Bejoy Krishna, as alleged by the plaintiffs and it was preceded by a deed of agreement for the sale of the disputed property in favour of the plaintiffs on receipt of a consideration of rupees five thousand as earnest money. In so far as the document (Ext. 2) is concerned it was simply suggested by the defendants to P. W. 1 that the sale deed as well as the agreement were obtained by fraud. But then there was no specific case in this regard as made out by the defendants. The trial court also did not place any credence on the story as sought to be made by the defendants that Bejoy Krishna was an illiterate person or a man of weak intellect who did not have the advantage of any independent counsel in the matter and could not understand the real purport of the document he executed by way of a conveyance. In the suit brought by Bejoy's mother Sukumari before the Original Side of this Court in 1965 Bejoy was made a party defendant but he did not enter appearance. It was during the life-time of the mother of defendant in February 1974 that he filed a suit against the present plaintiffs in the City Civil Court at Calcutta challenging the genuineness of the deed of conveyance. The trial Court drew a conclusion from these facts that the story subsequently made out by Bejoy was merely an afterthought since he wasted an inordinately long time in taking proper steps for cancellation of the deed and his conspicuous non-appearance in his mother's suit also did support the inference that it was a conscious act on his part to have executed the document which was amply supported by the fact that he approved the raft of the deed by fixing his signature in each page of the draft which fact as proved by P. W. 2 Akshoy Kumar Mukherjee, Advocate, who prepared the draft. P. W. 2 Akshoy Kumar Mukherjee who prima facie appeared to be a disinterested witness was relied upon by the trial court in this context and taken in conjunction with the fact that admittedly the signatures of Bejoy in the deed of conveyance (Ext. 1) was not disputed and the plaintiffs so produced a receipt (Ext. P. W. 2 Akshoy Kumar Mukherjee who prima facie appeared to be a disinterested witness was relied upon by the trial court in this context and taken in conjunction with the fact that admittedly the signatures of Bejoy in the deed of conveyance (Ext. 1) was not disputed and the plaintiffs so produced a receipt (Ext. 3) showing payment of a sum of rupees five thousand in terms of the registered agreement (Ext. 2) where also the signature tallied with the one appearing in the deed of conveyance, the trial court came to an inference that the documents were neither manufactured by the plaintiffs nor were they obtained from Bejoy by practising fraud, misrepresentation or coercion. Ext. 4 (a) was a letter of attornment written by Bejoy to one of the tenants in the suit premises wherein also it was given out that he had sold out the suit property to the present plaintiffs. On 9th June 1965 Bejoy executed another registered agreement in favour of the plaintiffs (Ext. 2 (a)) wherefrom it appears that the original title deeds were with one Anil Kumar Maity for which Bejoy had executed a hundi. This document, however, revealed that Bejoy signed the letter to the said Anil Kumar Maity through the present plaintiffs. The letter (Ext. 4) written by Bejoy the plaintiff No. 1 Balailal Adak shows that he forwarded the original partition deed in respect of the suit property to him after paying in full the dues. Ext. 5 came from the custody of the plaintiffs. The learned trial judge also took note of the fact that these deeds of conveyance and the agreements were registered documents and Bejoy admitted their execution before the Sub-Registrar in respect of these documents. After taking the entire evidence on record, we are also constrained to hold that these documents as executed by Bejoy were consciously and voluntarily executed by him and the case of fraud, misrepresentation etc. could not be said to have been proved. Furthermore, there was no evidence worthy of consideration the point either. The learned trial Judge also commented in this context that the conduct of Bejoy in sitting idle for long nine years and taking belated stand that fraud, misrepresentation of coercion was practised upon him was not the conduct of a reasonable person who would be deprived of paternal property and possible his only dwelling house. The learned trial Judge also commented in this context that the conduct of Bejoy in sitting idle for long nine years and taking belated stand that fraud, misrepresentation of coercion was practised upon him was not the conduct of a reasonable person who would be deprived of paternal property and possible his only dwelling house. We also agree with the findings of the learned trial Judge that the deed of conveyance is feed a genuine one and there was real passing of a consideration of 25,000/- (rupees twenty five thousand) as given out in the said deed. As regards the inadequacy of the consideration, the defendants have not led by evidence credible enough on the point except merely averring in course D. W. 1's testimony that the property at the relevant time was worth more than rupees two lakhs and could not be sold out for a sum of rupees twentyfive thousand. No evidence from any expert valuer or any deed of conveyance in the vicinity was called for regarding the exact valuation prevailing at the relevant time and the learned Judge accordingly came to a finding that there was no material enough before him to hold that the property was grossly undervalued by the plaintiffs. ( 5 ) A question of law was raised by the learned Advocate for the appellants to the effect that since Bejoy had no title to convey at the time when he executed the conveyance (Ext. 1) the purchasers also did not obtain any title whatsoever by virtue of the said document. It was contended that Bejoy had at best during the life-time of his mother no more than a spess successionis, an expectation or hope of succeeding to the property which was clearly not transferable within the meaning of section 6 of the Transfer of Property Act. It was contended that in view of there being a clear bar to such a transfer, the transferee could not obtain any valid title in respect of the property and that the liberty of feeding estoppel as recognised in section 43 of the Transfer of Property Act would also not be called into play. But then we find that Bejoy had a vested interest as per recitals in the Will of his father (Ext. But then we find that Bejoy had a vested interest as per recitals in the Will of his father (Ext. 10) where it was clearly given out that after the death of the testator's wife Smt. Sukumari Dassi, the testator's sole son Bejoy Kumar Ghosh Poali would be getting all the testator's movable and immovable properties in absolute rights. In section 43 of the Transfer of Property Act the statute clearly envisages a case where a person fraudulently or erroneously professes to transfer a property for consideration on a representation that he is authorised to transfer the same and such transfer, at the option of the transferee, operates on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Section 43 follows the common law rule of estoppel by deed in that the subsequent estate passes to the transferee without any further act of the transferor. This is based on the rule that if a man, who has no title whatever to the property, grants it by a conveyance which in form carries the legal estate, and he subsequently acquires an interest sufficient to satisfy the grant, the estate instantly passes. Our Supreme Court in Jamuna Masjit vs. Kodimaniandra Deviah, reported in AIR 1962 SC 847 held that the principle of feeding estoppel recognised in section 43 of the Transfer of Property Act would also apply to a case where a reversioner purports to transfer properties to which he has only a chance of succeeding, if he represented to the transferee that he was absolutely entitled to the properties and if he subsequently acquires title to the properties. Overruling the earlier Madras High Court decision in Official Assignee of Madras vs. Sampath Naidu, AIR 1933 Madras 795, the Supreme Court held that though section 43 would not apply where the transferee knew the facts, there was no reason why a transferee who was not aware of the true facts and who acted on the fraudulent representation should not have the benefit of the equitable doctrine embodied in section 43. We find on a perusal of the deed of conveyance (Ext. 1) that Bejoy Krishna represented himself to be the sole heir of his father. In respect of the property which he inherited from his father on the latter's death on intestacy. We find on a perusal of the deed of conveyance (Ext. 1) that Bejoy Krishna represented himself to be the sole heir of his father. In respect of the property which he inherited from his father on the latter's death on intestacy. It is evident still that there was a fraudulent representation by Bejoy Krishna and the existence of the Will was also suppressed from the purchasers. Not only was there a fraudulent silence on the part of Bejoy Krishna regarding the existence of the Will but them there was a misrepresentation which amounted to fraud when he clearly gave out that his father died intestate. In view of the pronouncement by our Supreme Court, as stated earlier, we do not find really any distinction between the transfer by a reversioner and the transfer by the holder of the vested interest as it happened in the instant case. In any view, since Bejoy Krishna became the owner on the death of his mother and there was a clear indication of his vested interest in the testamentary disposition of his father, we hold that by virtue of the conveyance (Ext. 1), the plaintiffs obtained valid title to the suit property and Bejoy and his legal heirs are bound by the same. ( 6 ) IN that view of the matter we do not find any force in the present appeal as preferred by the appellants. The appeal being without any substance stands dismissed with costs. Let the records be sent down to the court below through a Special Messenger at the cost of the respondents. J. N. Hore, I agree appeal dismissed.