KALIPRASANNA SINHA Vs. HARIPADA GHOSH HAJRA

JUDGEMENT

(1.) This is an appeal from a decision of the District Judge of Murshidabad reversing a decision of the Subordinate Judge of that district. In the suit out of which this appeal arises the plaintiffs were claiming a declaration of their title to a certain lakheraj property and also to some jote lands as described in the schedule to the plaint. They also claimed recovery of possession of both the lakheraj property and the jote land. The facts on which the claim is based are shortly these : There was a lady named Sukhada Sundari Dasi who executed a will on 20 June 1904 whereby she dedicated all her property to the family idol of her husband and appointed him (that is to say her husband) as she-bait of. the debuttar property so created. The husband however predeceased the lady. She herself died in April 1916. After the death of the husband the lady left her husband's home at Panchthupi and lived with her brother, Raghuram Singh, father of defendant 1. Raghuram used to manage Sukhada's property as her am-mukhtear until the time of his death. Subsequently his son, who is defendant 1, by name Kaliprosanna was also appointed her am-mukhtear somewhere about the year 1912. In that year the lakheraj property of Sukhada which is the subject-matter of the suit was sold by certificate sale for arrears of roadcess and purchased by a man named Syamaprosad, brother-in-law of Kaliprosanna, defendant 1. The plaintiffs in the suit are the sons of one Basanta Kumar Ghose who had been appointed shebait of the debuttar property by Sukhada Sundari.

(2.) Some four years after the death of the lady, namely, in 1920 they obtained probate of her will as executors, and on 31 August 1923 they instituted this suit in their capacity as executors to the estate of Sukhada Sundari Dasi and also as shebaits of the debuttar property claiming, as I have indicated, declaration of title to the lakheraj land sold under the certificate sale and also to the jote land to which I have already referred. The claim was based on the allegation that defendant 1 Kaliprosanna during the time when he was acting as am-mukhtear to the testatrix, had purposely withheld payment of road-cess and had fraudulently brought the property to sale and that at the sale he had himself purchased it in the benami of his brother-in-law who is the father of defendants 2, 3, 4 and 5. There was also an allegation on the part of the plaintiffs that all knowledge of the sale had been fraudulently concealed from Sukbada Sundari and that she was allowed to remain in possession of the property until the time of her death. The case made on behalf of the defendants was a denial of any fraud or any benami transaction on the part of defendant 1 in the name of his brother-in-law so far as the lakheraj property was concerned; and as regards the jote lands it was urged that there was a defect of parties and that they were not in possession of defendants 2, 3, 4 and 5. But the main contention on behalf of the defendant was that the suit was barred by limitation by reason of the: provision of Art. 95, Schedule 1, Lim. Act; and the point which has been argued before us is whether or not the suit was-barred under that article or whether the suit was still maintainable as only being liable to be barred by Articles 140 or 142 or 144. It is really immaterial for the purposes of this case which of these latter articles applies, if in fact Art. 95 does not apply, because it is admitted that the suit was instituted within a period of 12 years from the date of the. certificate sale. The finding of the Subordinate Judge so far as the facts of this case are concerned were that he had no-doubt that defendant 1 with the fraudulent intention of depriving Sukhada of the lakheraj property demised by the will of Sukhada to the idol brought about a sale and purchased the lakheraj property in the benami of his sister's husband Syamaprosad and that he was in possession of that property. The learned Subordinate Judge who tried the suit. came to the conclusion that the suit ought to have been brought within three years from 14 April 1920 which was about the time when the circumstances of the fraud came to the knowledge of the plaintiffs.

(3.) I have already stated that the suit was in fact instituted on 31 August 1920, i.e., more than three years from the time that fraud was found by the Subordinate Judge to have come to the knowledge of the plaintiffs. The learned District Judge upheld the decision of the Court of first instance upon the facts and affirmed the view of that Court that the. certificate sale was brought about deliberately and fraudulently with the object alleged by the plaintiffs. But the learned District Judge differed from the view taken by the learned Subordinate Judge on the question of limitation and came to the conclusion that Art. 95, Schedule 1, Lim. Act, did not apply to the circumstances of this case and accordingly held that the suit was brought within time. The learned District Judge said in the course of his judgment: The period of limitation would be 12 yearn from the accrual of the plaintiff's title to the lakheraj land, that is from the time of the death of Sukhada Sundari in April 1916 and the suit is not time barred.