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2014 DIGILAW 958 (CAL)

Chittaranjan Chatterjee v. Sadhan Banerjee

2014-09-29

GIRISH CHANDRA GUPTA, SHIB SADHAN SADHU

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Judgment : Shib Sadhan Sadhu, J. 1. Appellant/Plaintiff filed the suit for declaration that the registered deed of Family Settlement being deed No.2178 dated 09.09.1987 executed by his wife Kamalarani Devi in favour of the defendants is void, collusive, fraudulent and procured by false impersonation and so is not binding upon the plaintiff. 2. Plaintiff’s case is that the suit property was purchased by his wife prior to their marriage. After marriage they began to reside in the suit property, a portion of which was occupied by a tenant. His wife had been suffering from high blood pressure, high blood sugar and neurological problem and she was under medical treatment. Since no issue was born out of their wedlock, they adopted a female child named Shibani Das and they brought her up as their own daughter. The condition of Kamalarani deteriorated day by day and she used to stay in Kolkata under the care of Shibani. Plaintiff used to come at weekend. Shibani used to take help of the defendants who are the sons of the elder sister of his wife, in the event of crisis. Ultimately plaintiff managed his posting at Kolkata and took his wife and Shibani to his paternal house at Dumdum. From the year 1982 Kamalarani lost the senses of distinguishing right or wrong. She died on 12.07.1999. 3. Being the sole legal heir of his deceased wife Kamalarani Devi, the plaintiff began to collect rent from the tenants in respect of the suit property by issuing rent receipts. On 08.08.2005 he received Advocate’s letter along with some annexures and came to learn that his tenant Aravinda Pal had filed a suit against him for protection of his tenancy right. The appellant then asked his said tenant who disclosed that one of the respondents Sekhar Banerjee had threatened him to oust from the suit property and to construct a multi-storied building thereon. The appellant then rushed to the house of the respondents. Being asked one of the respondents disclosed that they had acquired right, title and interest in the suit property by virtue of the impugned deed dated 09.09.1987 and that they would not allow him entry into the suit property. The appellant then rushed to the house of the respondents. Being asked one of the respondents disclosed that they had acquired right, title and interest in the suit property by virtue of the impugned deed dated 09.09.1987 and that they would not allow him entry into the suit property. The appellant thereafter, took out the certified copy of the impugned deed No.2178 dated 09.08.1987 and filed the suit alleging that his wife was not physically or mentally fit, that she had no reason to execute such deed nor she could understand the contents or sign it and the defendants have procured the deed by false impersonation. 4. The defendants contested the suit by filing a Written Statement in which the allegations brought by the plaintiff were denied. It was contended further that Kamalarani after acquiring the suit property made construction therein by taking money from Mani Mohan Banerjee, father of the defendant, whom she used to treat as her son. She incurred huge expenditure but she could not repay such amount. After marriage she repeatedly asked the plaintiff to pay that sum of money which was received by her for constructing the residential unit in the suit property but he did not make any payment. So, she made up her mind to transfer such property in favour of Mani Mohan Banerjee or his sons. She used to reside in the suit property but the plaintiff did not maintain her. So, she inducted some tenants in the suit property and realized rent from the tenants and maintained herself. Also Mani Mohan and his sons used to pay some money to her. So, she had decided to execute a deed of private trust in favour of the defendants. Kamalarani was not suffering from various ailments from the beginning of her married life. 2/3 years prior to her death on 12.07.1999 she had been suffering from blood sugar and blood pressure but she had no neurological problem. The plaintiff did not take her to any Doctor for treatment. As per the instruction of Kamalarani, Tushar Kanti Ghosh prepared the draft of the deed of Family Settlement and stamp paper was purchased and the deed was executed on 09.09.1987 in which Kalipadababu was the identifier of Kamalarani and Amal Kumar Mitra and Tanima Sengupta were the witnesses. The plaintiff did not take her to any Doctor for treatment. As per the instruction of Kamalarani, Tushar Kanti Ghosh prepared the draft of the deed of Family Settlement and stamp paper was purchased and the deed was executed on 09.09.1987 in which Kalipadababu was the identifier of Kamalarani and Amal Kumar Mitra and Tanima Sengupta were the witnesses. The said deed was executed for establishment of Shiva Temple in some portion of the suit property at the cost of beneficiary and the maintenance and the management of the Shiva Temple would be made from the deposited amount of Kamalarani. 5. Further contention of the defendants was that the tenants surrendered their tenancy in favour of the defendants and thereafter the defendants submitted the building plan and got it sanctioned. The execution and registration of the impugned deed of private trust was within the knowledge of the plaintiff. Long before filing of the suit by Aravindababu he had surrendered his tenancy in favour of the defendants and after such surrender, the plaintiff subsequently in collusion and connivance with Aravindababu got that suit filed by the latter treating him as the tenant. There was no structure in the suit property at the time of filing of such suit by Aravindababu against the plaintiff. 6. Upon due consideration and proper appreciation of all the evidences adduced by both the parties, the Learned Trial Court dismissed the suit on finding that the plaintiff had full knowledge about the execution of the deed and he has failed to prove that he has filed the suit within 3 years from the date of his knowledge and so the suit is barred by limitation and that the plaintiff has failed to prove that the impugned deed is void, collusive and procured by practising fraud, misrepresentation and by false impersonation. Such findings of the Trial Court were challenged before the Lower Appellate Court. The Lower Appellate Court has concurred with the findings of the Trial Court and upheld the same and put a seal of approval on the decree of dismissal passed by the Trial Court. Being aggrieved, the plaintiff has preferred this second appeal. 7. Such findings of the Trial Court were challenged before the Lower Appellate Court. The Lower Appellate Court has concurred with the findings of the Trial Court and upheld the same and put a seal of approval on the decree of dismissal passed by the Trial Court. Being aggrieved, the plaintiff has preferred this second appeal. 7. On hearing the Learned Counsel appearing for the appellant and on perusal of the judgments passed by the Courts below, we find that the plaintiff has filed the suit for declaration that the impugned deed is void, collusive, fraudulent, forged and procured by misrepresentation and false impersonation and is not binding upon him. We further find that admittedly Kamalarani Devi, the wife of the plaintiff, was the absolute owner of the suit property being her self acquired property by purchase before marriage and transferred the same in favour of the defendants by executing the impugned registered deed on 09.09.1987. Therefore, it clearly appears that the instrument has been done by a person in authority and has immediate and actual operation given to it so as to operate at once upon the rights or property intended to be affected thereby and the plaintiff is bound by it and the transaction is valid until it is avoided. 8. The law is well-settled on the point that the party who alleges fraud must do so clearly and specifically with detailed particulars and general allegation of fraud will not be permitted. Further, charges of fraud and collusion must be established by proof of facts or inferences legitimately drawn from those facts taken together as a whole. Suspicions, surmises and conjectures are not permissible substitutes for those facts or those inferences. It is a pure question of fact when the fraud first became known to the plaintiff. But it does not mean that one can shut his eyes to obvious facts. The Court may, therefore, having regard to the nature of the fraud, the facility with which it may be known and to the likelihood of attention being called to it, infer such knowledge when the means of knowledge first came or have for a reasonable time being within plaintiff’s reach. 9. In the instant case, the plaintiff has not pleaded or proved any fraud by giving detailed particulars as per provision of Rule 4 of Order VI of the Code of Civil Procedure. 9. In the instant case, the plaintiff has not pleaded or proved any fraud by giving detailed particulars as per provision of Rule 4 of Order VI of the Code of Civil Procedure. He simply alleged that he came to know for the first time after receipt of the notice of the suit filed by his tenant Aravindababu. But the Learned Trial Court on evaluating the evidence has come to the finding that said Aravindababu who deposed being called by the plaintiff as his witness (P.W.2) is a person set up by the plaintiff who got that suit filed through P.W.2 just for making out his case of knowledge and that the plaintiff failed to prove that P.W.2 was his tenant or that he ever realized rent from him. Also the Learned Trial Court has found that the plaintiff has failed to prove that he is in possession of the suit property. Be that as it may the plaintiff has made no whisper as to why he remained silent so long his wife was alive and why he could not know from his wife who executed the deed about the alleged fraud or undue influence. Also he kept silence as to whether his wife had at all knowledge about such material facts, although she remained alive for about 12 years after executing the deed. Since the suit is filed by the plaintiff who is legal representative of his deceased wife to get the deed declared fraudulent limitation would run not from the date when the material facts became known to the actual plaintiff but as soon as they were known to the deceased. Therefore, from that angle too, the plaintiff is hard put to explain all such circumstances convincingly to prevent the rigorous of limitation from having its ordinary effect as the suit is on the face of it is time-barred. 10. It is surprising to see that although the plaintiff has castigated the impugned deed as forged and procured by false impersonation but he admitted that the signatures of the grantor appearing on its pages are those of his wife Kamalarani. Therefore, the plaintiff himself gives a go by to his case of forgery or impersonation. 11. The Trial Court dismissed the suit on findings on facts in issue before it in terms of evidence adduced by the parties and the Lower Appellate Court concurred with such findings. Therefore, the plaintiff himself gives a go by to his case of forgery or impersonation. 11. The Trial Court dismissed the suit on findings on facts in issue before it in terms of evidence adduced by the parties and the Lower Appellate Court concurred with such findings. We find nothing to interfere. We find no legal infirmity in the impugned judgment. Also we find no substantial question of law is involved in this second appeal. We, therefore, refuse to admit the appeal and the same is accordingly dismissed.