MAHENDRA NATH MONDAL Vs. SHEIKH SHAMSUDDIN

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for recovery of possession of land, upon declaration of title.

(2.) The subject-matter of the litigation is an occupancy holding which was held by ore Narayan Chand Maiti under two sets of landlords, the Nandis and the Mitras. Maiti made a testamentary disposition of his properties on the 15th Jane 1885 and died shortly afterwards. He left a widow Keshabi Debi, an adopted son Radha Krishna and a subsequently born son Harey Krishna. By the Will the testator dedicated all his properties to the service of his family deity and appointed his adopted sen and his after-born son as shebaits. He further directed that Keshabi Debi would be the executrix during the minority of the two sons. Probate was granted to her on the 1st March 1886; but for some unexplained reasons, it was not limited during the minority of the two sons. Keshabi Debi took possession of the estate by virtue of her office as executrix While she was thus in occupation, default was made by her in the payment of rent to both sets of landlords. The result was that in 1905 the Nandi defendants instituted a suit against her, obtained a decree for their share of the rent, and at a sale held in execution thereof purchased the holding on the 21st January 1908, In 1908 the Mitra landlords brought a suit for their share of the rent, obtained a decree and put up the property to sale on the 18th September 1908, when it was purchased by the plaintiffs. It appears that the plaintiffs, with a view to make their title absolutely secure, subsequently obtained a settlement from the Nandi landlords on the 26th March 1913. The defendants claim under a derivative title from the adopted son and the after born son: and, the question in controversy between the parties is as to the legal effect of the two execution sales.

(3.) The Courts below have dismissed the suit on the ground that nothing passed by these sales, beyond the right, title and interest of the then defendant, namely, Keshabi Debi, and as she had no personal interest in the disputed property, the plaintiffs have acquired no title to the occupancy holding. In our opinion this view cannot possibly be sustained.