J C GALSTAUN Vs. PROFULLA KUMAR DE

JUDGEMENT

(1.) This appeal is directed against the decision of the learned President of the Calcutta Improvement Tribunal, dated 10 March 1928, apportioning money awarded to two different sets of claimants to the same. Claimant No. 1, Mr. J. C. Galstaun, appellant in this Court, was awarded by the Land Acquisition Collector, the whole amount of compensation in regard to premises No. 72 Karaya Road, Calcutta, which was acquired compulsorily, under the provisions of the Land Acquisition Act. On a reference made under Secs.18 and 19, Land Acquisition Act, from the award of the Collector, by the respondents in this appeal, who are described in the proceedings before us as " the claimant No. 2," the award of the Collector made on 11 May 1927, in favour of claimant No. 1, has been modified, and the compensation money has been apportioned by the tribunal between claimants Nos. 1 and 2, in the proportion of 1 to 3. The appellant before us has sought in this appeal to establish his title to the entire sixteen annas share of the property acquired under the Land Acquisition, Act and has laid claim to Rs. 10,122-6-4 the entire amount of the compensation money, as awarded to him by the Land Acquisition Collector, for the acquisition of the property.

(2.) The question of title to the property acquired, as also the question of possession of the same arise for consideration in determining the rights of parties to the compensation money. So far as the question of title goes, it is not disputed that the property originally belonged to one Yusuf Ostagar. The subsequent devolution of the property after the death of Yusuf Ostagar has been related in two different ways. According to the respondents, who contested the Collector's award, which went against them, after Yusuf's death the title to the property in question vested in his sister Jotun Bewa and his widow Anar Bibi, Jotun having inherited a twelve annas share of the same, the remaining four annas having gone to the widow, Anar Bibi. Jotun's twelve annas share was, in course of time, inherited by her daughter, Anar Bewa. It is necessary to mention that materials before us go to show that the fact that Jotun was the sister of Yusuf was disputed in 1886, by Anar Bibi, in a letter-of-administration ease, and the decision of the District Judge in the contested proceeding arrived at on 24 June 1886, was that Jotun was the sister of Yusuf and was therefore entitled to letters-of-administration being the chief heir." The relationship of Jotun Bewa to Yusuf Ostagar as his sister, and her title to the property as such must be taken to have been established, and it cannot be allowed to be challenged by a person in the position of the appellant before us, who claims through Anar Bibi (who contested Jotun Bewa's right to a grant of letters-of-administration, as Yusuf Ostagar's sister : see Kali Pada De V/s. Dwija Pada Das . After the death of Jotun, her daughter Anar Bewa inherited her share of Jotun's property; and on 28 August 1892 Anar Bewa conveyed her interest in the property to Ishan Chandra Dey.

(3.) This purchase by Ishan was on behalf of four brothers, the members of a Hindu joint family one of whom is Tarani Kanta Dey, one of the respondents in this appeal, the respondents as between themselves representing the interest of the four brothers in whoso behalf the purchase of the property was made by Ishan Chandra Dey. There is a statement in the conveyance executed by Anar Bewa, which is Ex. 2 in this case, that her mother Jotun was granted a certificate under Act 27, in respect of twelve annas share of Yusuf Ostagar's property. The reference to Act 27 must be taken to be under a misapprehension, as there was obviously a grant of letters-of-administration to Jatun Bewa, as evidenced by the decision of the District Judge to which reference has already been made and all that was perhaps indicated by reference to Act 27 was that Jotun Bowa took out letters-of-administration in respect of the properties of Yusuf Ostagar and had also taken out a certificate for collection of debts, under Act 27 of 1860 which was in force when Jotun Bewa inherited her brother Yusuf's properties. By the conveyance of 1892, 12 annas share of the property in question was sold to Ishan Chandra Dey. Before that on 31 July 1886, Anar Bibi, the widow of Yusuf Ostagar, purported to convey a 16 annas interest in the property to one Meher Ulla and Meher Ulla thereafter conveyed his interest in the property to Hridoy Chandra Dey, on 23 August 1898. The nature of the purchase by Hridoy, through whom claimant No. 1, appellant in this Court, claims a 16 annas share in the property in question was described by Ishan Chandra De in an affidavit Ex. N in this case, sworn and filed by him in the original side of this Court, on 15th June 1904, in the manner following: I say that premises No. 74/1 Kuria Road, 72 Kuria, Road 61 and 61/1 Kuria Road and 59 Kuria Road are my properties and was purchased benami in the name of Hridoy Chandra Dey under the following circumstances: namely, that I purchased the undivided three-fourths share of and in the above premises but before my purchase one Meher Ulla Mundle purchased from Anwar Bibee and others the above properties although they were entitled only to the one-fourth share thereof and had no power to sell the entirety. After the purchase of the said undivided three-fourths share I took possession of the same but the said Meher Ulla Mundle tried to get possession of the same from me and after certain proceedings the said Mehr Ulla Mundle came to a settlement with me and it was subsequently arranged that 1 should pay Rs. 2,000 to the said Meher Ulla Mundle and he would convey all his right, title, interest of and in the said properties to me but as I had no funds then in my hands I asked Hridoy Chandra Dey one of the defendants above named to lend and advance to ma the same but he agreed to do so if I furnish some security for Rs. 2,000, and for Rs. 3,082-06 which was due to the firm of Madhu Sudan Dey-Gopal Chandra Dey by me as balance of certain money borrowed by me from the said firm and at last it was agreed between me and the said Hridoy Chandra Dey that I should purchase the above property from Meher Ulla Mundle in his name and that he should be put into possession of the same but when the said sum of Rs. 8,082-0-6 would be paid to him he would transfer the said properties to me.