BIRENDRA NATH BANERJEE Vs. SHIBARAM ADITYA

JUDGEMENT

(1.) This appeal by the plaintiffs arises out of a suit for a declaration that the plaintiffs are the reversionary heirs of their maternal grandfather, Surendra Nath Mookerjee (deceased) and that their mother Avista Karini Debi (Defendant No. 8) had" only the limited interest of a Hindu daughter in the properties left by Surendra Nath Mookerjee arid described in Schedule Ka of the plaint and as such the auction sale held at the instance ol defendant No. 1 against defendant No. 8 in respect of one of the properties and certain other alienations made by defendant No. 8 in favour of defendants 2 to 7 in respect of other properties are not binding on the plaintiffs.

(2.) The plaintiffs' case is that their maternal grandfather, Surendra Nath Mookerjee died on the 23rd January 1910 (corresponding to the 12th Magh 1316) leaving a widow named Rakhal Dasi and a daughter named Avistakarini by another wife. Avistakarini had five sons named Ramendra, Khagendra, Birendrat Nirendra and Debendra. Of these five sons the suit was originally instituted by the last four and Ramendra was impleaded as pro forma defendant No. 9. Subsequently Rameiidra was transposed to the category of the plaintiffs. Shortly after the death of Surendra Nath, Avistakarini (defendant No. 8) applied for letters of administration with a copy of the Will alleged to have been executed by Surendra. Rakhal Dasi filed objections to the grant; but the Additional District Judge who tried the suit made an order for the issue of the Letters of Administration. Against that order Rakhal Dasi filed an appeal to the High Court which was registered as Appeal from Original Decree No. 175/19.12. The High Court allowed the appeal and set aside the order for the issue of Letters of Administration. Against the decision of the High Court Avistakarini filed an application for leave to appeal to Privy Council which was registered as Privy Council Appeal No. 145/1914. This, appeal to Privy Council was not proceeded with and eventually allowed to be withdrawn on 14-12-1915. The plaintiffs claim that as a result of the dismissal of Avistakarini's application for Letters of Administration and the withdrawal of the appeal to the Privy Council it was established that Surendra Nath Mookerjee had died intestate and Rakhal Dasi, the widow and Avistakarini, the daughter, had only life interests in the properties left by Surendra Nath Mookerjee. Rakhaldasi, the widow died in Falgoon, 1334, corresponding to February-March 1928. Although Avistakarini had only a life interest in the properties left by her father she entered into various collusive transactions with the different defendants on the footing that she was the absolute owner, without any justifying legal necessity. These transactions, according to the plaintiffs are not binding on the plaintiffs as the reversionary heirs of Surendra Nath. The transactions that impeached by the plaintiffs are: (a) a mortgage in favour of defendant No. 1 (Doman Aditya) which was followed by a decree and an auction sale (b) a mortgage in favour of Defendant No. 2 (Nripendra Nath Bose) (c) a mortgage in favour of Defendants Nos. 3 and 4 (Sailendra Krishna and Jiban Krishna Kundu Choudhury) (d) A lease for twenty years in favour of Defendant No. 5 (Nayan Chandra Datta) (e) a' permanent lease in favour of Defendants Nos. 6 and 7 (Bachulal Saha and Jagannath Saha). The plaintiffs prayed that the auction-purchase by defendant No. 1 and the mortgages and leases executed by defendant No. 8 (Avistakarini) in favour of defendants 2 to 7 are not binding against the plaintiffs and the reversionary rights of the plaintiffs are not in any way affected thereby.

(3.) The suit was contested by five sets of written statements. The defendant No. 1 died after filing his written statement and his heirs defendants Nos. l(a) and l(b) adopted the written statement filed by him. The defence of defendants 1, 2, 3, 4, 6 and 7 is that the suit is barred by limitation, estoppel and waiver, that Avistakarini had an absolute interest in the estate of her father, because after the decision of the High Court in Appeal from Original Decree No. 175/1912 there was a compromise between Avistakarini and Rakhal Dasi as a result of which Rakhal Dasi withdrew her objections to the Probate case and Avistakarini got an absolute title to the estate of her father; that thereafter Avistakarini continued in possession as an absolute owner adversely to Rakhal Dasi and her title to the estate was perfected by adverse possession, they further pleaded that even assuming that Avistakarini was a limited owner the transactons were binding upon the plaintiffs because they were entered into for the benefit of the estate and for justifying legal necessity. The defence of defendant No. 5 was that Avistakarini was the absolute owner of the properties left by her father and that he was a bona fide lessee in respect of one of the properties.