SHYAMA CHARAN BANERJI Vs. MRINMAYI DEBI

JUDGEMENT

(1.) By this suit the plaintiff sought to recover possession of a parcel of garden land.

(2.) His case was, that the, garden had belonged to his father and uncle in moieties and that on the death of his father he as his heir became entitled to one moiety. The other moiety descended on the death of the uncle to the two sons of the latter, Kalikamal and Nilkamal. On the death of Kalikamal, his widow Trailokyamohini succeeded to his one-fourth share, and when she died it passed to Gobindamohini, Kalikamal's mother. On the death of Nilkamal his widow Bhabatarini took the remaining one-fourth share as his heiress. Bhabatarini and Gobindamohini both died childless, the former in November 1888, and the latter in November 1894, leaving the plaintiff the sole reversionary heir of their respective states. On the 8th January 1888 the defendant's husband purchased from Bhabatarini her one-fourth share in the garden, and on the 4 June 1890 he purchased from Gobindamohini her one-fourth share. Subsequently the defendant, her husband having died in the meantime, possessed herself of the whole of the garden, and the plaintiff now sued to have his title to the garden declared, to have the sale to the defendant's husband set aside as having been made without legal necessity, and to recover possession. The defence, as far as it is now material, was that the suit as regards a moiety of the land was barred By the operation of Section 13 of the Code of Civil Procedure. This plea was founded on a suit brought by the defendant's husband against the present plaintiff in the year 1895 for a declaration of his title to a moiety of the garden under his purchases from Bhabatarini and Gobindamohini and for partition. The suit was not defended, and the then plaintiff obtained a decree ex parte under which the partition V, was subsequently carried into effect, and the present defendant obtained possession, With respect to the remaining moiety the defendant states that she is not in possession and lays no claim to it.

(3.) The question for decision now is, whether the validity of the sales under which the defendant claims can be enquired into in the present suit, and that question appears to us to depend on whether it was Incumbent on the present plaintiff in the suit of 1895 to contest the title of the defendant's predecessor on the ground which he now seeks to take, namely, that the sales to him were not supported by legal necessity.