KEDAR NATH PODDAR Vs. GAYA NATH PODDAR

JUDGEMENT

(1.) This is an appeal by the plaintiff from a decision of the Subordi nate Judge, 2nd Court, Pabna, affirming a decision of the Munsif, Second Court, Pabna and arises out of a suit for a declaration of title to and recovery of possession of certain lands described in the plaint.

(2.) The plaintiff's case was that Mohim Chandra Poddar, who owned the properties in dispute, died on the 7 Falgoon 1325 B.S. corresponding to the 19 February 1919 leaving as his heirs defendants 2 and 3 who are his daughter's sons. Plaintiff 1 purchased the properties from them on the 18 of Pous 1327 corresponding to 2 January, 1921 in the name of his son plaintiff 2 since deceased and possessed the suit properties until Falgoon 1327 when according to the plaintiff, defendant 1 dispossessed him therefrom. The plaintiff further alleged that after the purchase of the properties from defendants 2 and 3, defendant 1 propounded a will which was said to have been executed by the aforesaid Mohim Chandra Poddar and obtained probate thereof from the District Judge of Pabna as executor. Mohim Chandra Poddar, however, bequeathed an absolute right in the properties to defendant 2 by that will and defendant 1 had no right to dispossess the plaintiff. The suit was contested by defendant 1 alone, the main contention being that the will conferred only a life-estate on defendant 2 and his mother, who predeceased Mohim Chandra Poddar, and that defendants 2 and 3 had no right to sell the properties in question to the plaintiff who therefore, it was pleaded, acquired no title by his purchase.

(3.) The trial Court dismissed the suit holding that the will conferred only a life estate upon defendant 2 and his mother who predeceased that testator, that the restriction on alienation imposed by the will was legal, and that in consequence the plaintiff had acquired no title by his purchase. Against that decision an appeal was preferred to the District Court and the learned Subordinate Judge who heard the appeal concurred with the view which had been taken by the Munsif and dismissed the appeal. The plaintiff has now perferred this second appeal.