BABULAL MANDAL Vs. SM ABALA BALA DASYA

JUDGEMENT

(1.) This appeal is on behalf of defendants 1, 4, 5 and 6 and arises out of a suit brought by the plaintiff, Abala Bala Dasya, widow of Ashutosh Mandal, for declaration of title to and for recovery of possession of properties mentioned in schedule 2 of the plaint, and also for mesne profits.

(2.) One Ananta Mahata had two other brothers, Darpa and Rajib. They were all separate, and, in this litigation, we are concerned with the property left by Ananta Mahata. Ananta Mahata had made a will on 29-7-1931 giving four annas share in his properties to his wife, Baroda and twelve annas to Thakmoni, widowed daughter-in-law by his predeceased son, Hari Ram. He died some time in 1934 leaving behind him Baroda, the widow, Thakmoni, the daughter-in-law, the plaintiff, widow of his grandson, Asho, and Darpa's sons and grandsons, defendants 7 and 8 to 11. Defendant No. 12 is the widow of Panu, one of the sons of Darpa. The third brother, Rajib, had no son but had only two daughters, whose husbands are defendants 4 and 5. After the death of the testator, Ananta Mahata, the widow, Baroda, and the daughter-in-law, Thakmoni, propounded the will and? prayed for letters of administration with a copy of the will annexed. Caveat was entered, amongst others, by Abala Bala Dasya, the plaintiff. During the pendency of the proceedings for letters of administration, Baroda died and for some time the proceeding was continued by Thakmoni alone. Thakmoni was murdered in January, 1940 and her brother, Babulal Mandal, defendant No. 1, was substituted in her place on 15-6-1940. A petition of compromise was filed on 12-11-1940 between the present defendant No. 1, on the one hand, and Saroda Mandal, defendant No. 7 and Panu Mandal, husband of defendant No. 12. The Court refused to record the compromise, and the compromise petition was directed to be kept on the record. Letters of administration with a copy of the will annexed were ordered to be issued to defendant No. 1 on 23-12-1940. The present plaintiff filed an appeal to this Court (First Appeal No. 18 of 1941) against the decree of the Subordinate Judge granting letters of administration to Babulal Mandal. From the order-sheet of the High Court, which we sent for and perused, it appears that the parties were heard and judgment had been reserved. When the judgment was about to be delivered, there was a prayer for postponement of the delivery of the judgment, and, on 5-5-1943, this Court allowed the present defendant No. 1 to withdraw the application for letters of administration and he was to pay costs to the appellant of that appeal, the present plaintiff. It was further said that defendant No. 1 would make no further application for grant of letters of administration with a copy of the will of Ananta Mahata annexed. According to the case of the plaintiff, after the High Court order, there was apprehension of dispute between the plaintiff, on the one hand, and the heirs of Darpa, on the other, and in 1350 Fasli, corresponding to 1943, a deed, called a deed of settlement, was executed by Fanu, deceased husband of defendant No. 12, Saroda, defendant No. 7, and Pashupati, defendant No. 8. By this document, the lands mentioned in schedule 2 of the plaint were given to the plaintiff and the plaintiff came in possession of these lands. Defendant No. 1 and sons of defendants 4 and 5 forcibly dispossessed the plaintiff by harvesting the paddy grown by her. Panu was also murdered in connection with that dispute. The dispute led to criminal cases and ultimately the plaintiff had to bring the present suit. Defendants 2 to 5 are subsequent transferees from defendant No. 1 in respect of some of the lands in dispute. According to the plaintiff, these transfers were fraudulent and collusive and were made just to give colour of genuineness to the defendant's claim.

(3.) Defendants 1 and 5 filed a written statement, which was adopted by defendants 2, 4 and 6. Defendant No. 6 is wife of defendant No. 4. Their defence was that the deed of settlement in favour of the plaintiff gave her no rights; that the order of the High Court was without jurisdiction and did not in any manner affect the validity of the order of the Subordinate Judge, passed in favour of defendant No. 1 granting him letters of administration with a copy of the will annexed; that the order of the High Court was a conditional order and the withdrawal of the application depended upon payment of cost and the cost not having been paid, the appeal in the High Court would be deemed to be pending; and that the order of the Subordinate Judge, in consequence, would be binding upon the parties. They also contended that the compromise arrived at in the proceeding for letters of administration was a valid compromise binding on the parties. The defendants denied the plaintiff's case of possession and dispossession. It was also contended that defendant No. 1 was entitled to retain possession of the lands under the provisions of Section 53A, Transfer of Property Act.