DASARATHY SINHA Vs. MAHAMULYA ASH

JUDGEMENT

(1.) This is a suit brought in February 1917 by Dasarathy Sinha, who claims to be entitled to an undivided eight annas interest in certain premises in Calcutta, known as, No. 21, Harodhone Lane. The plaintiff s claim is made on these lines. He says that these premises belonged at one time to a joint Hindu family of which Jitram Rakhit and Ramsabek Rakhit were the members. The plaintiff has sat out the various steps in his title, but these do rot concern the present question until we come down to a conveyance, dated the 1st December 1911, from one Srimanto Kumar Datt to one Joygopal Pal. It appears that Joygopal had a vesting order made against him on two occasions under the Indian Insolvency Ant, being the Imperial Statute 11 & 12 Victoria, Chapter 21 of 1848. According to the admissions made by the plaintiff s witnesses, and according to the original documents produced, the orders were made on the following dates, the first in the 2nd December 1899 and the second on the 4th May 1905. It appears that, in the case of neither insolvency, did Joygopal Pal get his final discharge, though in the first insolvency he got an order for his personal discharge on the 5th June 1900. After his death, namely, on the 25th August 1915, one Shahai Narain Pal took a conveyance of the premises in question from the administrator appointed by the Court to Joygopal Pal s estate. Shahai Narain Pal, according to the plaintiff s evidence, was a mere benamidar for himself, and it appears that on the 26th May 1916, he executed a deed of relinquishment to the plaintiff, thereby vesting in the plaintiff all the rights that accrued to the purchaser under the transaction of 25th Agust 1915.

(2.) The defendant is sued as a person in possession of an interest in the premises in question, and, according to the plaintiff s case, the defendant is a purchaser of the interest that at one time belonged to one Ram Sabek Rakhit and afterwards to his adopted son, Rajessur Rakhit. The issue in the case are, broadly speaking, the question whether the plaintiff can prove his title, and the question whether the plaintiff has been out of possession or the defendant in adverse possession for 12 years before the date of the institution of the suit.

(3.) The defense, so far as the allegations in the plaint are concerned, does not admit the various steps in title which the plaintiff has pleaded and it also raises the question whether the transactions were fictitious, but it does not in any way expressly refer to the fact of either of the two insolvencies of Joygopil Pal. Those insolvencies have apparently been brought to the notice of the defendant s advisers at a late stage, if not actually during the conduct of the plaintiff s case. In this state of things, at the end of the plaintiff s evidence and after he has dosed his case, Mr. Avetoom, for the defendant, takes the point that, in view of the fact of these insolvencies under the Act of 1848, it appears that Joygopal s administrator had no title whatsoever to convey; that the title vested in the Official Assignee, and that, therefore, toe plaintiff s case should be dismissed without culling upon the defendant, the ground being that the title has been shown to be vested in some one else according to the plaintiff s evidence.