LAWS(PVC)-1931-8-47

SASHI KANTHA ACHARJEE Vs. PROMODE CHANDRA ROY

Decided On August 24, 1931
SASHI KANTHA ACHARJEE Appellant
V/S
PROMODE CHANDRA ROY Respondents

JUDGEMENT

(1.) The properties concern-ad in the suit out of which these appeals have arisen are seven in all, the first six of which are described in Schedule 1 to the plaint being certain taluks or shares therein, and the seventh one which is described in Schedule 2 being a quantity of khamar lands lying within item 6 of property of Schedule 1. They belonged at one time to one Lala Ram Chandra. Lala Ram Chandra died on 19 Pous 127(5 (2 January, 1870) having executed a will on 15 Pous 1276 (29 December 1869), and leaving him surviving his widow Hara Kumari Dasya, a daughter Shyam Kumari Dasya, and the husband of the latter, one Sital Chandra Lala. After his death his widow Hara Kumari on 16 Sravan 1283 (30 July 1876) on the strength of the authority conferred on her by the will, adopted the plaintiff Lala Ram Shankar as her son.

(2.) By the will (Ex. 27) spoken of above, Lala Ram Chandra Roy gave authority to Hara Kumari to adopt five sons in succession unless a son so adopted would be living and bequeathed his moveabla and immovable properties to Hara Kumari with the exception of a half of property No. 2 which he gave to his daughter Shyam Kumari for maintenance. The will provided that during the lifetime of Hara Kumari the adopted son, if any, should get an allowance of Rs. 20 a month and that on Hara Kumari's death he would got all the properties. The other terms of the will need not be set cut here. Shyam Kumari died in Aswin 1320 and her husband Sital Chandra is also dead. Hara Kumari died on 12 Falgun 1326 (24 February 1920). On 26 February 1921, the plaintiff Lala Ram Shankar Roy commenced the present action on the allegation that on the death of Hara Kumari there being no other preferential heir he became absolutely entitled, under the provisions of the aforesaid will, to the properties left by Lala Ram Chandra Roy. He alleged that on Hara Kumari's death he attempted to take possession of the properties hut found that Maharaja Sashi Kanta was in possession, as heir of his father the late Maharaja Surjya Kanta, who had not himself registered as having purchased or having got ijara settlement of the properties from Hara Kumari and Shyam Kumari. He averred that he had not been able to ascertain the real title of the Maharaja as there was a fire in the registry office, in consequence of which the papers therein had been destroyed. The suit was originally instituted against two persons, Maharaja Sashi Kanta as defendant 1 and another person in whose favour Maharaja Surjya Kanta had made a nishkar brahmattar grant in respect of some khamar lands lying within property No. 6. The prayers were for recovery of khas possession and mesne profits on declaration of the plaintiff's title.

(3.) Defendant 1 filed a written statement on 9 July 1921. On an objection taken by him and on his supplying the names of defendants 3, 4 and 5, the latter were made parties to the suit on 12 August 1921. These defendants filed a written statement on 5 June 1922. They raised a similar objection on which defendants 6, 7 and 8 were added as pro forma defendants on 29 July 1922. Defendant 6 is the same person as defendant 1. On 17 April 1928, defendant 8, filed a written statement. Thereafter defendants 9 and 10 applied to be made parties; and this application was opposed on behalf of the plaintiff Lala Ram Shankar Roy, but was eventually granted on 14 August 1923, on condition that they paid some costs. On 20th September 1923, the plaintiff Lala Ram Shankar Roy applied for and obtained an order that that defendants 9 to 18 be all added as pro-forma defendants. On 31 May 1924, defendant 9 filed a written statement, which defendant 10 subsequently adopted as his own. Defendant 8 having died defendants 8ka and 8kha were brought on the record as defendants. Defendant Ska by a petition filed on 26 August 1924, accepted as his own the written statement which had been filed by defendant 8, and defendant 8kha filed a written statement on 6th September 1924. On 19 May 1925, one Promode Chandra Roy Choudhury applied to be added as a plaintiff. This application was consented to by the plaintiff Lala Ram Shankar Roy and was allowed, the original plaintiff Lala Ram Shankar Roy now becoming plaintiff 1 and the added plaintiff Promode Chandra Roy Choudhury plaintiff 2.