HURRINATH CHATTERJI Vs. MOHUNT MOTHOOR MOHUN GOSWAMI

JUDGEMENT

(1.) THE question in this appeal is whether the suit is barred by the law of limitation. It was brought to recover a two-thirds share of immoveable and moveable properties formerly in the possession of Ramanundun Goswami (Mookerji), to which he was said to be entitled, as to one part as marfatdar or shebait, and as to the other as malik. He died in 1847, leaving a widow, Pearimoni, his second wife, and five daughters, one having died in his lifetime. The eldest daughter, Drobomoni, died in 1867, leaving a son, Kala Chand, who died in the following year, leaving a son, Girish Chunder, who is the third Defendant. The second daughter, Hurromoni, died in 1874, leaving a son, Mothoor Mohun, the first Defendant. The third of the survivors, Motimoni, died in 1857, leaving a son, Thakoordas, the second Defendant. The fourth died childless, and the last survivor, Sampurna, died on the 22nd of February, 1884, leaving a son, Hurri Nath, who is the Plaintiff. The plaint stated that, after the death of Hurromoni, Sampurna, who was then the only survivor of the daughters, placed the whole of the estate under the management of Mothoor Mohun, who some time after brought suits for rent against tenants, and, with a view of effecting registration in his own name under Act VII. of 1876 (Bengal Council), made petitions; that thereupon Sampurna became an objector, and, the objections having been disallowed, she, in 1879, brought a suit against Mothoor Mohun in forma pauperis, which was dismissed on the 27th of June, 1881; that she preferred an appeal in forma pauperis to the High Court; but the appeal not having been preferred within the prescribed time her application to prefer it in forma pauperis was rejected, with liberty to prefer an appeal within six weeks on putting in the Court fee; that she was unable to do this, and consequently the dismissal of her suit became final. The plaint further stated, that Thakoordas, on a native date corresponding with the 17th of August, 1875, made to the Plaintiff a gift of his share of one-third of the estate left by Ramanundun, making the Plaintiff entitled to two-thirds as claimed., Mothoor Mohun in his written statement said that Sampurna, after the death of Pearimoni, instituted a suit for possession of all the properties under claim against him; that her claim was dismissed on the ground of limitation, it having been established that, after the death of Pearimoni, Sampurna was never in possession of the shebas and the other properties relating thereto left by Ramanundum.

(2.) THE Subordinate Judge made a decree for possession by the Plaintiff of the immoveable properties claimed in the plaint with the exception of some specified lands, and the Plaintiff has not appealed against this exception. The Defendant Mothoor Mohun appealed to the High Court. In the judgment of that Court it is said that "the defence, so far as it need be referred to, is that the claim is barred by limitation, as none of Ramanundun' s daughters inherited or were in possession; that the Plaintiff is bound by the adverse decree passed against Sampurna in the suit which she brought against Defendant No. 1, and that he cannot bring another suit." This defence was distinctly asserted in the written statement, and no objection appears to have been taken that it was not raised by the issues which were settled. The judgment of dismissal of the 27th of June, 1881, although it had been filed with the plaint, was not put in evidence, and cannot be looked at; but the High Court had before it the statement in the plaint which admitted that there had been that judgment, and Mothoor Mohun said in his written statement that it was on the ground of limitation. There was thus sufficient evidence for the High Court to found its judgment upon.

(3.) IN 1877 this Act was repealed and the Limitation Act of 1877 was passed. In that Act the same period of limitation was by Article 14.1. prescribed to a suit by a Hindu or Mahomedan entitled to the possession on the death of a Hindu or Mahomedan female.