RAJA JOGENDRA NARAYAN DEB Vs. DEBENDRA NARAYAN ROY

JUDGEMENT

(1.) The suit which is now before the Board was begun on 9 May 1930, in the Court of the Subordinate Judge at Alipore in Bengal. The substantive claim made by the plaint e was for declaration of title to and possession of the moveable and immovable properties which had been comprised in an impartible estate in Assam known as the Bijni Raj. By a schedule marked B 19 items of immovable property and seven items or classes of moveable property were specified in the plaint as the subject-matters of the claim. The suit was brought by one Debendra Narain Roy as executor to the estate of the late Rani Abhayeswari Debi who had died on 17 October 1918, having made her will on 30 August in that year. This lady was the survivor of two widows of Raja Kumud Narayan Bhup who had until his death in 1883 enjoyed the undisputed ownership and possession of the impartible estate. He bad died sonless : a daughter had died unmarried soon after him. The other widow had died in 1891. The case made by the plaint was on the footing that the Bijni family was not a Hindu family and that succession to the estate was governed by a family custom of primogeniture which excluded females. On that footing it was averred in the plaint, as it had been recited in the will, that from 1891 and until her death, Rani Abhayeswari had been in possession of the entire estate on her own account under a claim of absolute right in herself and adversely to the person or persons entitled by the family custom to succeed to the estate. The cause of action alleged in the plaint was that soon after her death the Court of Wards had taken possession of the estate on behalf of Jogendra Narayan defendant 1, nephew to her late husband, being the son of his brother Kirti Narayan. Jogendra had on 27 November 1918, been found to be of unsound mind by an order made on inquisition and it is not in dispute that the Court of Wards on his behalf had taken possession of the Bijni estate in December of that year. As against Jogendra who was thus in possession, the person beneficially entitled under the will and in whose interest the suit was brought was a nephew of the lady's own, called Heramba Prasad Barua, son of her brother Bhabani Prasad. To Heramba she had bequeathed all the moveable and immovable properties belonging to the Bijni estate. His representatives are the contesting respondents upon this appeal.

(2.) It is to be noticed upon this narrative that on 9 May 1930, when the suit was filed not quite twelve years had elapsed since December 1918, when the Court of Wards had taken possession. Meanwhile a number of other claims to the estate had been put forward in the Courts. It is not necessary that these should be here detailed but they explain why three other defendants were impleaded in addition to Jogendra, and show that much litigation was in prospect, since highly discrepant versions of the family custom as to succession were being maintained by different members of the family. Indeed the Court of Wards for Jogendra spent considerable sums in October 1930, in compromising rival claims. His title to succeed was as the male agnate who had been nominated by Rani Abhayeswari herself on 28 September 1895. Bhairabendra, defendant 2, is the present appellant. He is a male agnate who had claimed the succession even as against Jogendra on the ground that his father through entering the family by adoption had been recognized as "Subha" and also because of Jogendra's unsoundness of mind. He said that the family was a Hindu family governed by the Bengal school of law as modified by certain customs. By these customs, he said, the "Subha" had a right to succeed if the last bolder left no male issue : subject thereto the succession went to the male agnate nearest in degree to the last holder or the eldest of such agnates if more than one-that is to say, by the rule which in India is sometimes called "ordinary" as distinct from "lineal" primogeniture. Bhairabendra had been one of the plaintiffs in a suit (No. 225 of 1919) brought against Jogendra and others in 1919, but on 25 October 1930, soon after the present suit had been begun, he had compromised with Jogendra recognising the latter's title for life in return for a lac and a half of rupees. Defendant 3 to the present suit was Surendra Narayan Deb the son of Uday Narayan who had been Bhairabendra's co-plaintiff in suit No. 225 and was also a claimant to the estate. Defendant 4 was Sourendra Narayan Chaudhury who had been substituted in another suit (No. 51 of 1922) as plaintiff on the death of one Samarendra. He too compromised with Jogendra on 25 October 1930, withdrawing his claim for five lacs of rupees. The place of these last mentioned defendants in the family pedigree and their respective versions of the family custom need not here be set out but it may be mentioned that one claimant at least-Purnyendra nephew of defendant 4-claimed on the basis of "lineal" primogeniture.

(3.) Written statements on behalf of Jogendra and Bhairabendra were filed in February 1931, and issues were settled in April 1931. But the Provincial Legislature of Assam intervened in the matter by passing Assam Act 2 of 1931 called the Bijni Succession Act which received the sanction of the Governor on 27 March 1931, and of the Governor-General on 9 May 1931. Certain important parts of the Act are set out hereunder: An Act to regulate the succession in Bijni Raj. Whereas it is expedient to declare and supplement the customary law of succession in the group of estates known as the Bijni Raj in Assam with a view to the prevention of disputes and the preservation of the Raj; And whereas the previous sanction of the Governor-General has been obtained under sub-s. (3) of S. 80A, Government of India Act, to the passing of this Act; It is hereby enacted as follows : 2. In this Act,- (1)"the Bijni Raj" or "the Raj" means the group of estates specified in the schedule annexed to this Act, together with all additions and accretions to the property comprised therein that may have been or may hereafter be made from time to time by or on behalf of the Holder of the Raj and includes any securities held by him or on his behalf; (2) "family" means the Bijni Raj family; (3) "the Holder of the Raj" or "the Holder" means the owner of the Raj; . . . . 3. The Bijni Raj is hereby declared to be an impartible estate descendible to a single male Holder according to the provisions of this Act. 4.-(1) Raja Jogendra Narayan Bhup of Bijni is hereby declared and shall during his lifetime be the Holder of the Raj with title dating from his nomination to the succession made by Rani Abhayeswari Debi on 28 September 1895. (2) Upon the death of the said Raja the Holder of the Raj shall be the person now known as Kumar Bhairabendra Narayan Deb, son of the late Chandra Narayan Deb; .. (3) From and after the death of the Holder succeeding to the Raj under sub-s. (2), the succession shall be determined by nomination or appointment as hereinafter provided. 10.-(1) Without the previous sanction of the Governor of Assam, it shall not be lawful to sell, mortgage, devise, or in any other way transfer the Raj or any portion thereof or any interest therein otherwise than by lease for a term not exceeding 30 years. (4) Without the previous sanction of the Governor of Assam neither the Raj nor any portion thereof nor any interest therein may be attached or sold in execution of any decree or order or other process of law. The schedule specifies three large estates in Assam which are said to be the same as items 1, 2 and 17 in the list of immovable properties in Sch. B to the plaint. The question for decision is as to the effect of this enactment upon the claim made by the present suit on behalf of the estate of the late Rani Abhayeswari to the properties of the Bijni Raj. It comes before the Board as the result of certain proceedings which may now be stated. The learned trial Judge allowed amended written statements to be filed setting up the Act as an additional defence, and framed certain additional issues of which those numbered 16, 17, 18 and 20 bear upon this matter. 16. Does Assam Act 2 of 1931 (the Act) bar the present suit ? Is the said Act ultra vires of the Government of Assam ? Is the said Act invalid as opposed to provisions of the Government of India Act and the rules made thereunder 1 17. Can the said Act affect the present suit, the right of the plaintiff under the will, if any, having accrued long before the Act ? 18. Can the said Act affect any of the properties outside the local limits of the Government of Assam? 20. Has the plaintiff any title to the Bijni Raj- the subject-matter of the suit - in view of Assam Act 2 of 1931 (the Act)? These issues (and three others which need not now be referred to) were tried first. The decision of the learned trial Judge is dated 24 April 1933. He decreed that the suit be dismissed in respect of the properties situate in Assam and that it remain pending in respect of the properties outside Assam-that is, in respect of items 8 and 9 of Sch. B to the plaint. These items are: (8) the premises in Calcutta known as 147 Russa Road being about an acre of land with a masonry built house of two storeys thereon; (9) the land and buildings at Benares known as the Bijni rajbati. From this decision an appeal was taken by the plaintiff to the High Court at Calcutta and on 17 March 1936 .Mukherji and Ghose JJ. set aside the decision of the trial Judge and ordered that the ease be remanded for trial of the further issues, holding that the Act did not bar a claim to the Bijni estates if based upon adverse possession but only claims based upon an alleged right of succession. Reported in ('36) 23 AIR 1936 Cal. 593.