SARODA SUNDARI DASI Vs. TARINI CHARAN CHOWDHRY

JUDGEMENT

(1.) This suit is brought by the plaintiff, as mother and guardian of her minor son Sital Chandra Dhar, to set aside a will hearing date 16th Aghran 1247 (1840) containing a permission to adopt, said to have been executed by Gagan Chandra Podar, and an adoption alleged to have been made by Paresmani, widow of Gagan Chandra, by virtue of the permission aforesaid, and to recover possession of the eight-anna share of property, real and personal, left by his maternal uncle Mohan Chandra Podar, or subsequently acquired from joint funds. Gagan Chandra Podar and Ananda Chandra Podar were uterine brothers, joint in estate and mess. Gagan Chandra died on 2nd Pous 1247 (December 1840) leaving a widow Paresmani, a minor son named Mohan Chandra, and three or four daughters, one of whom is the plaintiff Saroda Sundari who, subsequent to her father's death, was married to Haradhan Dhar, by whom she has issue a son Sital Chandra, on whose account the present suit has been brought.

(2.) Mohan Chandra died on 5th Magh 1257 (January 1851) while still a minor, and his mother Paresmani succeeded to the property and continued in joint possession with her brother-in-law Ananda Chandra. In Falgun 1257 (1851) Paresmani, under the authority vested in her by the will aforesaid, adopted Tarini Charan, the second son of Ananda Chandra. Saroda Sundari was married, it is said, in 1253, and gave birth to her son Sital in Aswin 1261, and brought the present action in Baisak 1274 (30th April 1867) seventeen years after the adoption of Tarini by Paresmani, who died on 28th Jaisti 1273 (1866).

(3.) The defendants Tarini Charan and Ananda contend that the will, hearing date the 16th Aghran 1247 (1840) is a genuine document executed by Gagan Chandra; that the adoption made by Paresmani under the permission given her in the will is valid; that a separation in mess took place between Paresmani and Ananda in 1258 (1851-52); that the properties acquired by Ananda subsequent to this separation were acquired by him from his own means and by his own exertions; that the plaintiff's claim to the personal property is arbitrary, for of the cash which was in Ananda's custody, he paid rupees 22,000 to Paresmani, receiving from her an ikrar hearing date the 27th Magh 1258 (1852), and he paid a further sum of rupees 15,000 to Tarini on his attaining majority; and that of the real property claimed by plaintiffs. Nos. 11, 45, 46, 47, 48, 227, 228 and 229 were acquired by Ananda after the separation in mess, and have been sold by him to Rani Durga Sundari of Chachrah; Nos. 70, 71, 80, 192, 196, 208 and 209 are not in existence; Nos. 96 and 127 have been twice recited in the plaint; Nos. 206, 213, 214 and 235 have been given up to the zamindar; Nos. 238 and 239 have been sold by auction; No. 126 belongs to Sadoka Sundari, the daughter of Ananda; and Nos. 4, 20, 21, 67, 73, 74, 90 and 97 were the property of Manoka Sundari Dasi, the sister of Ananda Chandra, and were by a will executed by her devised to Jaggat Chandra, and Tarini Charan, her nephews, who are in possession. It is added by Tarini Charan in his written statement that when Gagan Chandra died in 1247 (1840) the plaintiff was then about 6 years old; that consequently she was of age in 1258 (1851), and her statement that she came of age in 1265 (1858) is untrue, for her son was born in 1261 (1853); that the plaintiff in the year 1258 (1851) admitted that Tarini Charan was the adopted son of Gagan Chandra, and took a darpatni lease of Niz Jaffarpore from Ananda Chandra and Paresmani as the mother and guardian of Tarini Charan, and underlet the same property to Jaggat Chandra, and that her husband had both these leases registered: and that when application was made to the Collector for the insertion of Tarini's name as proprietor in place of Mohan Chandra, the will of Gagan Chandra was produced and filed, and though proclamation calling on objectors to appear was issued, the plaintiff, though then of full age, raised do objections.