BARADA PORSAD SAHA Vs. KRISHNA CHANDRA SAHA

JUDGEMENT

(1.) The suit in which this appeal arises was brought by the plaintiffs, now respondents, for declaration of their right and title to hold possession on the basis of their purchase in execution of a decree on the original side of the High Court of the properties-mentioned in Ka, Kha and Gha Schedules to the plaint after setting aside an order of the first Court of the Subordinate Judge of Dacca passed under Order 21, Rule 100, Civil P. C., on 16 February 1927. The plaintiffs further-prayed that they may be put in possession of all the properties except pro-perty No. 4 of Ka Schedule of which they were in possession at the date of the plaint and in case they were dispossessed pending suit they prayed for recovery of possession of the said property also. The suit was contested by defendants 1 and 4. The Additional Subordinate Judge of Dacca has decreed the suit on contest against defendants 1 and 4 and ex parte against defendants 2 and 3, by declaring plaintiff's title to the lands described in Schedules Ka, Kha and Ga of the plaint and by directing that they do get possession of the same. Hence the present appeal by defendants 1 and 4.

(2.) The material facts have been so fully dealt with in the judgment of the Subordinate Judge that it is unnecessary to recapitulate them except in the barest outline. It appears that Motilal Saha, an inhabitant of Sabhar died leaving him surviving three sons, Iswar, Adhar and Mohesh. These brothers lived as members of a Hindu joint family after their father's death and carried on seven joint businesses under different names including a money lending business in the name of Motital Iswar Chandra, Adhar Chandra, Mohesh Chandra Saha at 2, Jorabagan Street, in the town of Calcutta. Iswar died in Aswin 1296 B. Section corresponding to October 1889, being survived by his widow Basanta Kumari and his married daughter Kadambini. Kadambini was married to Bhabani and defendants 1 to 4 are their four sons. Basanta Kumari succeeded to the seven joint businesses after her husband's death as also to the other moveable and immoveable properties left by her husband and she possessed a Hindu widow's estate in the inheritance. The businesses were jointly conducted for nearly two and half years after her husband's death. The properties were divided by arbitrators who published their award on 14 Bhadra 1302 B. S. (1895). The money lending business at 2, Jorabagan Street, was divided in three equal shares and Basanta Kumari commenced a separate business on 1st Baisakh 1299 B. S., out of the assets received by her from one-third share of Iswar Chandra in the joint business on partition. This business was named Iswar Chandra Basanta Kumari and was managed by her son-in-law Bha-wani. This firm used to borrow when necessary from the firm of Kalicharan Girish Chandra Ray Chaudhury (defendant 6) owned by defendant 8 (who is a relation of defendants 1 to 4) and his co-sharers as also from Gosta Behary Roy, the maternal cousin of Bhawani Prasad.

(3.) The firm of Kalicharan Girish Chandra obtained a decree on the original side of this Court for Rs. 24,000 in 1921 and Susen, son of Gosta, obtained a decree for Rs. 8,900 against the firm of Iswar Chandra Basanta Kumari. The former decree was transferred to Dacca Subordinate Judge's Court for execution, and the plaintiffs purchased the properties described in Schedules Ka, Kha and Ga of the plaint along with other properties on 17 June 1922. It may be mentioned here that plaintiffs 1 and 2, that is Krishna Chandra and Ramlal, are the sons of Mohesh, plaintiff 3, Priyabala is the executor to the estate of Rakhal, son of Adhar; and plaintiff 4, Hiralal is another executor appointed by Rakhal's will. The plaintiffs claim that they purchased not simply the Hindu widow's estate possessed by Basanta Kumari at the- Court sale but the absolute interest in the properties in suit. Basanta Kumari died on 3 June 1923 after making an application under Order 21, Rule 90 of the Code for setting aside the sale and died pending such application which was never prosecuted to the end by her defendants 1 to 4 with the result that the sale was confirmed. Plaintiffs obtained delivery of symbolical possession and when they went to take actual possession, proceedings under Order 21, Rule 100 of the Code were started by defendants 1 to 4 alleging that the decree was a personal decree against Basanta Kumari and did not bind the reversioners. The defendants were successful in retaining possession although the Court held that the decree was not a personal decree against Basanta Kumari. The plaintiff's have accordingly brought the present suit praying for the relief above stated. It may be mentioned here that in para. 12 of the plaint, the plaintiffs alleged that Ka schedule properties were "of the time of the husband of Basanta Kumari Dasya" and Kha schedule properties were purchased with the profits of the Ijmali Karbar carried on by Basanta Kumari with her husband's brothers, and the Ga schedule properties were purchased with the profits of her separate Karbar, that is, Iswar Chandra Basanta Kumari firm.