DINESH CHANDRA ROY CHOWDHURY Vs. BIRAJ KAMINI DASEE

JUDGEMENT

(1.) This is an appeal on behalf of the first defendant in an action for recovery of possession of landed property upon declaration of title, and for mesne profits for the period of dispossession. The case for the plaintiffs-respondents briefly stated is as follows. The subject-matter of the litigation belonged to their ancestor Navadwip Chandra Sarkar who made a testamentary disposition of his properties on the 22nd May 1889, and died four days later. The will provided that upon the death of the testator, one-fotirth share of his landed property would pass to Biraj Kamini Dasi, the wife of his eldest son, Girish Chandra Sarkar. Another one-fourth share would be taken by Radha Ballav Sarkar and Jagat Ballav Sarkar, his grandsons by his predeceased son, Govinda Chandra Sarkar. The remaining half share would pass to the wives of his sons Bhagaban Chandra Sarkar and Harish Chandra Sarkar immediately upon their marriage, and so long as these sons would not marry, his youngest son Harish Chandra Sarkar alone would enjoy the proceeds of the said half share and hold possession thereof. At the time of the death of the testator, Bhagaban Chandra and Harish Chandra were both unmarried. They were married, however, in 1892, to two ladies by name Ganoda Sundari and Kuloda Sundari, respectively. Subsequently Ganoda Sundari died leaving an infant son, Diuesh Chandra: Kuloda Sundari died leaving an infant son, Ram Chandra. The plaintiffs assert that they were in possession of the disputed properties up till the 12th April 1897, by receipt of rent collected on their behalf by the executor to the estate from the tenants defendants, that is, the defendants other than the first defendant; that after the estate had been released by the executor in favour of the plaintiffs, the first defendant, an influential landlord, induced the other defendants to withhold payment of rent on the allegation that the lands were included in his zemindary: and that as a result of this combination amongst all the defendants, the plaintiffs have been dispossessed. The wife of Girish Chandra, the sons of Ganoda Sundari and Kuloda Sundari, and the sons of Govinda Chandra, therefore, commenced this action on the 19th January 1906, for declaration of title and recovery of possession and mesne profits. The defendants contested the claim on the grounds that the ancestor of the plaintiffs had no title to the disputed property, and that, in any event, the plaintiffs had acquired no valid title to any portion of his estate under his testamentary disposition.

(2.) The Courts below have concurrently found upon the question of fact, whether the disputed property was part of the estate of Navadip Chandra Sarkar, in favour of the plaintiffs: indeed, though the first defendant obtained repeated adjournments to produce evidence, and considerable indulgence was shown to him, he did not adduce any evidence at all in support, of his alleged title. Upon the question of law, namely, whether the plaintiffs had acquired a title under the testamentary disposition of their ancestor, the Court of first instance did not express any opinion, although it decreed the claim in full. The Subordinate Judge, however, has considered the question and held that the disposition was valid in law and operative to create a good title in the legatees. In this view, the decree of the Original Court has been affirmed by the Court of Appeal below. Upon the present appeal, the only question which has been argued is as to the validity of the testamentary disposition made by the testator.

(3.) It has not been disputed that there was a valid disposition in so far as an one-fourth share was given to the wife of the eldest son, Biraj Kamini, the first plaintiff in the suit, and also in respect of the other one-fourth share given to the grandsons of the testator, the fourth and fifth plaintiffs. But it has been argued that in so far as the second and third plaintiffs are concerned, who claim as the infant sons of their mothers, the wives of the two sons of the testator, Bhagaban Chandra and Harish Chandra, they have acquired no valid title as the disposition in favour of the wives of the two sons was invalid in law, because contrary to the provisions of Section 99 of the Indian Succession Act. It is worthy of remark that the objection in this form was neither specifically taken in the written statement, nor raised in the issues. It was undoubtedly not presented in this form in the Court of first instance. If it had been so taken, it would have been equivalent in substance to, an objection that there was an intestacy as to this one-half share, subject to the gift of the income in favour of Harish Chandra, that is, that this one-half share vested in interest in the sons and grandsons of the testator, subject to the gift of the intermediate income to Harish for his life. Two of these sons, including Harish, were acting as next friends to the second and third plaintiffs, and the two grandsons were themselves suing as plaintiffs. If, therefore, this specific objection had been taken, it is more than probable that the three sons of the testator might have applied to be added as parties plaintiffs," and thus completely met the objection of the defendants. As I have stated, however, the objection does not appear to have suggested itself to the defendants till the case was argued on appeal before the Subordinate Judge, who held, upon a construction of the will, that the testamentary disposition was valid and operative. The only question, therefore, which requires consideration in this Court, is whether there was a valid testamentary disposition in favour of the wives of the two sons of the testator, Bhagaban Chandra and Harish Chandra.