SHIB DEO MISRA Vs. RAM PRASAD

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for recovery of possession on the allegation that the plaintiff No. 1 is the reversionary heir of Kallu Misra, deceased, the last male, owner of the property. Plaintiffs Nos. 2 and 3 are transferees from plaintiff No. 1. In the plaint it was alleged that on the death of Kallu Misra, his widow Musammat Mohini entered into possession as a Hindu widow for her life, that she unlawfully made various transfers and ultimately died on the 15 of December, 1907. The suit as brought was just within limitation of this date, as the courts were closed on the 15 and 16 of December, 1919. The defendant No. 1 claims to be the adopted son of Kallu Misra. The other defendants are transferees either from Musammat Mohini or from the defendant No. 1, who are now in possession of the bulk of the property in dispute.

(2.) On behalf of the defendants there were several pleas taken. There was a denial of the pedigree set up by the plaintiffs. There was a plea that the claim was barred by time, and there were pleas that Ram Prasad, defendant No. 1, was the adopted son of the deceased, that the claim was barred by the principle of res judicata and that it was also barred by estoppel.

(3.) In the pleadings, or at the time when the issues were settled, there was no suggestion that the deceased, Kallu Misra, had left any will. On the other hand the plaintiffs vakil admitted that Shib Deo Misra, plaintiff No. 1, had other brothers alive, and also stated that he would not amend his plaint. As matters stood on the pleadings, it is clear that in any event, Shib Deo Misra not being the sole surviving reversioner at the time of the death of Musammat Mohini, the entire claim could not be decreed. At a late stage in the case Ram Prasad, defendant No. 1, filed a number of papers, among which there was a document purporting to be a will of Kallu Misra and bearing the date the 4 of October, 1887. Under it, with the exception of a temple and rights connected therewith which were to go to Ram Prasad himself, the rest of the property was on the death of Musammat Mohini to go to Shib Deo Misra, to the exclusion of his other brothers.