BISHNU CHARAN SRIMANI Vs. SUBODH CHANDRA DEY

JUDGEMENT

(1.) The properties which are the subject-matter of the present litigation belonged originally to one Banamali De. Banamali died leaving his widow Hiranmoyee Dasi and a daughter Panchubala. On November 19, 1924, Hiranmoyee sold by a kobala the properties in suit to Tinkarimohini Dasi and Labanyabati Dasi. Tinkarimohini died during the pendency of the suit and in her place the present Respondent's Nos. 1 and 2 were substituted. The Appellant, who is Panchubala's son, brought the present suit on an allegation that the sale was a collusive transaction and that in any case there was no legal necessity to justify the sale and consequently no interest passed to the Defendants thereby and that the Plaintiff has, on Hiranmayee's death, become entitled as the reversionary heir to Banamali's estate along with Panchubala's other son, Satyacharan. The Plaintiff asked for a declaration that there was no legal necessity for the sale; that the sale was "inoperative, void and without "consideration" and for a declaration that the Plaintiff and Defendant Satyacharan are heirs to the estate of Banamali.

(2.) The defence was three-fold: (1) that the suit is barred by limitation; (2) that it was barred by the principle of res judicata and (3) that there was in fact legal necessity for Hiranmayee's sale. The plea of res judicata was based on the fact that a suit, Title Suit No. 10 of 1925, was instituted by Panchubala and Satyacharan impeaching the validity of the sale on the ground that there was no legal necessity for the sale and that suit was dismissed on compromise.

(3.) The trial court held that the suit was not barred by res judicata or by limitation and also that there was no legal necessity. On appeal, the learned District Judge has held that the suit was barred by limitation and that the consent by Panchubala and Satya to the sale as evidenced by the solenama, by which the suit, namely, Title Suit No. 10 of 1925, was dismissed on compromise, afforded presumptive proof of legal necessity and that presumption has not been rebutted.