BIBHUTI BHUSAN ROY Vs. NARENDRA NARAYAN GHOSE

JUDGEMENT

(1.) THESE two appeals are at the instance of the plaintiffs. Appeal from Appellate Decree No. 1356 of 1944 arises out of Title Suit No. 95 of 1942 in which the plaintiffs ask for a declaration of their title to the disputed land and for confirmation of their possession and they also ask for an injunction restraining defendants 1 to 4 from proceeding with a certain mutation case instituted under the Land Registration Act. Appeal from Appellate Decree No. 1357 of 1944 arises out of Title Suit No. 88 of 1942 in which the plaintiffs pray for a declaration that defendants 5 and 6 are tenants under them in respect of kha schedule land of the plaint and ask for an injunction restraining defendants 1 to 4 from withdrawing the money which had been deposited by defendants 5 and 6 under the provisions of Section 149, Bengal Tenancy Act.

(2.) THE facts which are material for the purpose of these two appeals are these: One Nripendra Bala had a moiety share in Touzi No. 192 of the 24 -Parganas Collectorate. Defendants 1 to 4 instituted a suit, viz. No. 328 of 1937 against Nripendra Bala and obtained a decree on 2 -8 -1938. Before the decree, however, Nripendra Bala died living a will by which she bequeathed the disputed property to her daughter Saraswati and appointed her son Durga Charan as the exesutor. During the pendency of the suit, Nripendra Bala's pleader was requested to supply the names of the heirs of Nripendra Bala, and the pleader supplied the name of Durga Charan as the heir. Thereafter Durga Charan was substituted in the place of Nripendra Bala not as an executor to Nripendra Bala's will, but in his personal capacity as heir. Durga Charan accepted the written statement filed by his mother on 29 -4 -1938 and eventually the suit was decreed, as already stated, on 2 -8 -1938. In execution of this decree, the disputed property was sold on 15 -6 -1939, and the sale was confirmed on 17 -7 -1939. It further appears that on 26 -8 -1938 there was an order for probate being granted in favour of Durga Charan of Nripendra Bala's will. On 13 -9 -1989 the probate was actually issued by the Probate Court to Durga Charan on payment of the deficit probate duty.

(3.) THE question which has arisen in these two suits is which of these two sales will prevail. If the sale at which defendants 1 to 4 purchased be a valid sale, the plaintiffs' claim in the two suits is liable to be dismissed both the Courts below have taken that view and have dismissed the plaintiffs' suits and against the decisions of the Courts below, the plaintiffs have preferred the present second appeals.