NATABAR PARICHHA Vs. NIMAI CHARAN MISRA

JUDGEMENT

(1.) THESE two connected appeals are by some of the defendants, against the decision of the Subordinate Judge of Sambalpur decreeing the plaintiffs' suit for declaration of title, recovery of possession and damages in respect of certain property situate in Sambalpur District which originally belonged to one Lokanath Parichha. The said Lokanath Parichha died sometime in 1895 leaving three daughters through his first wife and a son named Satyanand through his second wife. The name of the second wife of Lokanath was Haripriya alias Srihari. But the parties differ as regards the name of his first wile, the plaintiffs asserting that she was Satyabhama alias Bhama, whereas the principal defendants urged that she was known as Malli. Satynnand succeeded to his father's property but died unmarried sometime in 1902 and then his mother Haripriya succeeded him with the limited interest known as a Hindu Woman's estate. She lived till 1942 and during this long period of nearly 40 years of her possession of the property as a limited owner, the Hindu Law of Inheritance underwent an important change which is mainly responsible for the present litigation. In 1929 the Legislature enacted the Hindu Law of Inheritance (Amendment) Act giving to a sister and a sister's son a higher place in the order of Mitakshara succession above the agnates. After this amendment, there were conflicting decisions of the High Courts as to whether the expression 'sister' in that Act would include a half -sister either consanguine or uterine. But this conflict was set at rest by the Privy Council in 'Mt. Shahodra v. Ram Babu', AIR (30) 1943 P C 10 where it was held that half -sisters were also entitled to succeed by virtue of the said amendment. The plaintiffs (who are respondents) claimed to be the step -sisters' sons of the last male -holder Satyanand and as such entitled to succeed to his property in preference to appellants I, 2, 3 and 4 who are the agnates of Satyanand. Appellant Durgaprasad Misra in P. A. No. 22 of 1946 is a subsequent alienee of a portion of the property from another agnate of Satyanand.

(2.) THE following pedigree will be helpful in appreciating the claims of the parties.

(3.) AS regards admissibility of Ext. 1 the main contention of Mr. Sengupta, learned Counsel for the appellants, is that it was not made 'ante litem motam' and consequently inadmissible. He urged that it was a self -serving document prepared by Satyabadi with a view to claim a share in the property of Lokanath at a time when the question as to who were the reversioners of Lokanath was it self in controversy. In support of his argument he stressed para III of that petition in which Satya -badi challenged Natabar's right to the property of Lokanath. This argument however appears to be without any substance. If the judgment in T. S. No. 31 of 1917 (Ex. c -1) be carefully scrutinised it seems clear that there was absolutely no controversy between the parties as to who were the reversioners of Lokanath. The plaintiffs of that suit were admittedly not the nearest reversioners. But neither the defendants of that suit nor Satyabadi challenged their status as reversioners. The fact that Lokanath had daughters through his first wife and that they were married was fully known to the parties as will be clear from the following passage in the judgment itself.