JOGENDRANATH BANERJEE Vs. MAKHAN LAL BANERJEE

JUDGEMENT

(1.) This appeal by the plaintiff arises out of a suit for partition and separate allotment of his eight annas share in the suit lands The plaintiff's case was that the lands belonged to his great grand-father Nemai Churn Banerjee, that on his death it was inherited by his two sons Pitam- bar and Kalikumar in equal shares: that Kalikumar's interest devolved upon his son Becharam and on Becharam's death his two sons, the plaintiff and Tarak came to be the owners: that by amicable partition with the son of Tarak the plaintiff became entitled to the entire eight annas share of the suit lands: that the remaining eight annas share of Pitambar ultimately came to defendants 1 to 11 in the course of succession and by transfers: that in spite of repeated demands the defendants bad failed to partition the property amicably. Defendants 1, 2 and 9 to 11 appeared, and various objections relating to extent of share, misdescription of the property, want of title, limitation etc. were taken but their main defence which is material for the purpose of the present appeal was that Becharam by a registered Will (Ex. P, certified copy) had dedicated all: his immovable properties to the family idol and had thus deprived the plaintiff from obtaining any interest in the, suit lands by inheritance: that in the absence of the shebaits of the idol the suit was not maintainable on account of the defect of parties. Regarding this main defence the issues framed in the trial Court were: Issue No. 4. Is the suit bad for non-joinder and mis-joinder of parties and Issue 6. Has the plaintiff inherited by share in the disputed property and-has he got any locus standi to maintain the suit?

(2.) Upon the issues aforesaid, the trial Court expressed its views in the following terms: There cannot be any doubt about the genuineness of the will of which Ex. F is a certified copy. The shebaits of the deities apparently took possession of the properties dedicated to the deities by virtue of the will after Becharam's death, although no probate of the will was obtained. It is urged by plaintiff's pleader that as the probate of the will is not taken out the will is inadmissible in evidence Notwithstanding Section 187, Succession Act, which is incorporated in the Hindu Wills Act, a will not proved in the probate Court may be used in evidence for a purpose other than the establishment of a right as executor or legatee. Section 187, Succession Act, does not stand in the way of defendants 9 to 11 putting forward the existence of the will of Becharam Banerjee (though unprobated) in answer to the plaintiff's claim to a share in his property.... The above deities represented by their shebaits...are necessary parties in this suit although no probate of the will has been taken. Their nonjoinder seems to be fatal to the suit.

(3.) Taking the above view the trial Court was of opinion that the plaintiff could not claim any share in the immovable properties left by Becharam on the basis of inheritance and could succeed only by proving adverse possession against the deities and the defendants. On the merits, it recorded the findings that the plaintiff had proved his 8 annas share : that adverse possession was established only in respect of C.S. Plots 1508 and 1509 ; that title was barred by limitation in respect of C.S. Plots 1510 and 1511: that plot No. 2 of the plaint was not shown to be included in C.S. Plots 868 and 870 as alleged, nor was it shown that it was in the possession of the plaintiff. It however dismissed the whole suit on a consideration of issue 4 as it held that there was defect of party which was fatal to the maintainability of the suit. Against this decision the plaintiff appealed and the learned Additional District Judge who heard the appeal took the view that having regard to Section 213, Succession Act, the unprobated will could not be made the basis for establishing title under it only by the executor or the legatee and as such the suit could not be dismissed for not making the shebaits party to the suit; he accordingly decreed the suit in respect of C.S. Plots 1508 and 1509 but he upheld the decision of the trial Court in respect of C.S. Plots 1510 and 1511 observing in the course of his judgment as follows: The position is, however, different when we come to consider the title of the plaintiff. The plaintiff must of course prove his title before he can get any relief in this suit. But when he seeks to prove his title on the basis of his and his brother's heirship of their father, the will stands in the way. While no one can be allowed to establish a title on the strength of this unprobated will, Section 213, Succession Act, does not bar its use as evidence that Becharam disinherited his sons. The unprobated will proved by D.W. 3 Hari Lal {vide Ex. E certified copy of the will) does, in my view, prove the disinheritance of the plaintiff and his brother by their father. In the circumstances the plaintiff cannot claim any title to the land in suit, either as an heir of his father or through his brother.