NAGENDRA NATH ROY Vs. HARAN CHANDRA ADHIKARY

JUDGEMENT

(1.) The facts of the two appeals, Nos. 37 and 57 of 1933, are to some extent inter-connected with each other and it is necessary to state the facts of the two cases in the order in which they have been presented by the learned advocate for the appellant. It appears that there were two brothers of the name of Prasanna and Bhabani. Prasanna had also another name Gurucharan. He died leaving behind him a widow Sham Rangini and his brother Bhabani. During the lifetime of Sham, Rangini she executed a deed of relinquishment of her husband's estate in favour of Bhabani, the latter promising to giving a certain amount as maintenance to the lady during her lifetime. In 1917 Bbabani executed a promissory note for certain amount in favour of Sham Rangini who instituted a suit against Bhabani on the said note. During the pendency of that suit Bhabani died. Sham Rangini however obtained a decree against the sons of Bhabani who are four in number, namely Syamapada Roy, Nagendra Nath Roy, Birendra Nath Roy and Jogendra Nath Roy.

(2.) Against this decree which was obtained by Sham Rangini against the present appellants, namely the sons of Bhabani, the latter preferred an appeal to the District Judge. In the meantime Sham Rangini took out certain proceedings to which it is not necessary to refer. On 20 October 1925, during the pendency of the appeal, the amount which was decreed in her favour and which had swelled at that time to a sum of Rupees 2,070 odd was withdrawn by Sham Rangini, one of her relations having stood surety for her. On 5 March 1930 the learned District Judge in the appeal brought against Sham Rangini came to the conclusion that her suit on the promissory note was barred by the statute of limitation and the, suit was accordingly dismissed by the appellate Court. Sham Rangini preferred an appeal to the High Court. On 15 December 1930 the defendants, that is, the sons of Bhabani, made an application for refund of the money which bad been taken out by Sham Rangini after the decision of the Court in the promissory note case. To this proceeding the surety was added as a party. On 4 January 1931, while the appeal to the High Court was pending. Sham Rangini died. On the death of Sham Rangini the appellants wanted to bring on record three persons, Kumudnath Roy, Ambikapada Roy, and one Haran Chandra Adhicary, on the ground that they had intermeddled with the estate and as such they were legal representatives of Sham Rangini or of her husband's estate within the meaning of Section 2, Civil P.C. The Subordinate Judge held that they are not the legal representatives, as the appellants are the legal representatives, being both the reversioners of Sham Rangini's husband's estate as also the heirs of her stridhan property. The Subordinate Judge accordingly dismissed this application for restitution. The District Judge has affirmed that decision holding at the same time that no appeal lay to him. Notwithstanding, the learned District Judge has gone into the merits of the case. It is against that order of the District Judge that an appeal from appellate Order No. 57 of 1933, has been preferred to this Court.

(3.) Now to come to the facts of appeal from appellate Order No. 37 of 1933. On the reversal of the judgment by the District Judge in the promissory note suit it is said the defendants- appellants became entitled to an amount of about Rs. 4,500. Sham Rangini brought a suit for arrears of maintenance and obtained a decree against Bhabani on 11 June 1930. On 20th August 1930 she made an application for execution for a sum of about Rs. 1,379. On 23rd December 1930 Sham Rangini is said to have assigned the benefit of this ex parte decree of Rs. 1,379 in favour of one Haran Chandra Adhikary who is respondent in appeal No. 37. The validity of this deed of assignment was challenged by the defendants. They alleged that as the deed was registered on the date on which Sham Rangini died, that is on 4 January 1931, it cannot be said to be a deed which was registered by her at a time when she was in full possession of her senses and it was further contended that the deed of assignment was a forgery as Sham Rangini was admittedly a literate lady and as she is alleged to have signed the document in eight places in four of which her name was spelt in four different ways.