RAI NARAYAN HAZARI Vs. BEJOY SINGH HAZARI

JUDGEMENT

(1.) The suit in which this appeal arises was brought by the plaintiff now respondent, for a declaration that certain properties which had been attached by one Chattan Kumari in a previous execution case arising out of Suit No. 90 of 1912, and which have bean released from attachment on a claim having been made by defendant 2 (now appellant) through defendant i are properties which belonged to one Kanta Prosad Hazari and are liable to be attached and sold in execution of the decree in Suit No. 90 of 1912 aforesaid.

(2.) It is not disputed that the properties now in suit belonged to Kanta Prosad Hazari who died on 25 September 1904 leaving behind him his widow Chattan Kumari. Prior to his death Kanta Prosad executed a will by which he provided inter alia that his widow Chattan Kumari should receive Rs. 1,000 yearly for her maintenance from his estate and that this maintenance was to be a charge on his estate. After the death of Kanta his estate was managed by his nephew Ramdin. The latter died in 1906 leaving behind him his widow Mathurya Debya who is defendant 1 in the present suit. After Ramdin's death there was dispute between Shewdayal the brother of Ramdin and Chattan Kumari regarding Kampta's estate. The parties are governed by the Mitakshara School of Hindu law, and consequently Shewdayal's son, Gajaraj or Bijoy, was also made a party to the suit (No. 223 of 1909 of the Sub-Judge's Court at Chittagong which was brought by Shewdayal against Mathurya and Chattan Kumari. In that suit a consent decree was passed. By para 2 of the petition of compromise on which the consent decree was based it was agreed that defendant 1 Mathurya will have a life-interest in the 8 annas share of the property in claim in that suit, and if she adopted, the adopted son will get the said 8 annas share from the date of adoption. It may be mentioned here that defendant 2 (appellant before us) claims to be her adopted son.

(3.) It was further provided for by the consent decree that Chattan Kumari has got a maintenance charge on the property and that defendant 1 was to pay half of this maintenance and in default the same would be realized by suit.