BIBHABATI DEVI Vs. RAMENDRA NARAYAN ROY

JUDGEMENT

(1.) THIS is an appeal by special leave from a decree of the High Court of Judicature at Fort William in Bengal, dated November 25, 1940, dismissing an appeal against a decree of the First Additional District Judge, Dacca, dated August 24, 1936.

(2.) THE present suit was instituted in the Court of the First Subordinate Judge at Dacca on July 24, 1930, by the respondent Kumar Ramendra Narayan Roy (hereinafter referred to as the plaintiff) against the present appellant and others. In the plaint, as subsequently amended on April 15, 1931, the plaintiff sought (ka 1) a declaration that he is Kumar Ramendra Narayan Roy, the second son of the late Rajah Rajendra Narayan Roy of Bhowal and (ka 1), that his possession should be confirmed in respect of the one-third share of the properties described in the schedule, or, if from the evidence and under the circumstances plaintiff's possession thereof should not be established, then possession thereof should be given to him. He further asked for injunctions against obstruction to his possession. THE present appellant filed a written statement denying, inter alia, the identity of the plaintiff with Kumar Ramendra Narayan Roy (hereinafter referred to as the Second Kumar), and alleging that the suit, was barred by limitation. Issues were adjusted, and those now relevant are, 2.Is the suit barred by limitation ? 4.Is the Second Kumar Ramendra Narayan Roy alive ? 5.Is the present plaintiff the Second Kumar Ramendra Narayan Roy of Bhowal ? After a very long trial lasting for 608 days, the First Additional District Judge delivered an elaborate and careful judgment in favour of the plaintiff on August 21, 1936, and by his order of the same date he ordered and decreed That it be declared that the plaintiff is the Kumar Ramendra Narayan Roy, the second son of the late Rajah Rajendra Narayan Roy, Zemindar of Bhowal, and that he be put in possession of an undivided one-third share in the properties in suit-the share now in the enjoyment of the first defendant (the present appellant)-jointly with the other defendants posscssion over the rest. On an appeal by the present appellant, the appeal was heard by a Special Bench of the High Court, consisting of Costello, Biswas and Lodge JJ. , and by decree dated November 25, (Lodge J. dissenting) it was ordered and decreed "in accordance with the opinion of the majority of the Judges that the judgment and decree of the Court below be and the same are hereby affirmed and this appeal dismissed. "

(3.) THE Rajah had executed before his death a deed of trust and a will, and, though the exact terms of these are not known, their result, as agreed, was that the estate, upon his death, vested in the Rani, his widow, in trust for the three sons. She managed as trustee till her death which took place on January 21, 1907. Upon that event the three sons became the owners at law, as they had been in equity; and there is no question that the Second Kumar owned a third share in the estate, and would be owning it still, if he be alive, unless he has been prescribed against for the requisite period.