SURENDRA NATH CHATTERJEE Vs. SAROJ BANDHU BHATTACHARJEE

JUDGEMENT

(1.) This appeal arises out or a suit to recover possession of the property in dispute. The plaintiffs alleged that certain persons (who may be described as the Mandals) mortgaged the property in suit to their maternal grandfather Surjya Kant Bhattacharjee, that Surjj a Kant executed a Will in favour of his daughter Gopendra Bala (the mother of the plaintiffs), that after the death of Surjya Kant the Mandals executed a mortgage kistbandi in favour of Gopendra Bala, and that on her death, the plaintiffs having succeeded to the estate of their maternal grandfather as heirs, brought a suit upon the mortgage and in execution of the decree obtained upon it, purchased the propel and obtained symbolical possession, but that the defendants were withholding possession from the plaintiffs. Some of the defendants are the mortgagees or their heirs, and the others are purchasers of portions of the property. The main points in dispute in the suit were, first, whether the plaintiff s mother, Gopendra Bala, obtained an absolute or a limited estate under the Will, for if she got an absolute estate the plaintiffs would not be heirs, as she left a maiden daughter who is still living; and, secondly, whether the decree and proceedings held thereunder are valid.

(2.) The Court of first instance did not take any evidence in the case but held that the Will conferred an absolute estate upon the plaintiffs mother, that she left a maiden daughter who is still living, and that the plaintiffs therefore, had no title to the property, and accordingly dismissed the suit. On appeal the learned Subordinate Judge held that the questions raised in the case should be, decided after, taking evidence and remanded the case for trial upon the merits. The defendants have appealed to this Court.

(3.) It is contended that the question whether the plaintiffs mother got an absolute or a limited, estate should be determined upon a construction of the Will only and that, under the Will, she took an absolute estate; secondly, that in any case the lower Appellate Court ought not to have remanded the case for trial, but, should have proceeded under Order XLI, Rule 25 of the Civil Procedure Code.