MAHOMED SADUT ALI MALLIK Vs. HARA SUNDARI DEBYA

JUDGEMENT

(1.) The respondent in this second appeal sued as being the reversionary heir of her father after the death in 1898 of her widowed mother, Jagodeshwari Debya, for a declaration of her title to, and the recovery of possession of, a share in shikmi taluq. It appears that in 1873 a decree for rent of the taluq was obtained against Jagodeshwari and her co-sharers. The latter satisfied the claim, brought a suit for contribution against Jagodeshwari and were given a decree, in execution of which a share of the taluq was sold and purchased on the 20th May 1876 by the appellant, a Mahomedan. Both the Courts below have decreed the plaintiff- respondent s suit, and this appeal is preferred by the defendant.

(2.) The first of the only two points raised on the appellant s behalf is as to the refusal of the Court of first instance to grant the appellant an adjournment and direct the issue of a commission for the examination of two ladies to prove that the respondent s father had adopted a son and that she had consequently been excluded from the Inheritance.

(3.) As to this the facts are these: The issues were first framed on the 17th August 1907, but on the 10th June 1908, an additional issue expressly raising the question of the alleged adoption was added. Witnesses were from time to time summoned, and the case was heard from the 20th to 26th November. Among the appellant s witnesses were two members of the family, called to testify to the adoption, but one of these (Arodhan) would not do more than swear that there had been some talk of an adoption, while the other (Shyam Sundar) failed to appear and no steps were taken to enforce his attendance. But on the 26th November, one Kally Kumar Chuckrabutty, a Pleader connected with the family, who had already been examined by the respondent as a witness in the case, was once more and at the last moment put into the witness-box by the appellant to declare that he had heard his mother and the respondent s sister Rashmoni say that a boy had been adopted; and no sooner was this hearsay statement extracted from him than the appellant applied for an adjournment and the issue of a commission for the examination of the two ladies. In these circumstances, the refusal to accede to the prayer, might,-we think, be supported on the merits if this were a regular appeal; it is certainly not arbitrary and incapable of justification; and we are of opinion that it is not open to us, on second appeal, to interfere with the discretion exercised in the matter by the lower Courts.