DURGA DAS DAS Vs. NALIN CHANDRA NANDAN

JUDGEMENT

(1.) These two appeal were argued by Mr. Sharat Chandra Rai Choudhuri on 15 February last. My learned brother on hearing him proposed to dismiss them summarily. I proposed to admit them for hearing. I do not propose to say more than certain of the arguments advanced by Mr. Rai Chaudhuri which inclined me in favour of admission of these appeals. He urged that the learned Subordinate Judge committed an error in making adverse remarks on the plaintiff's case. He should have noted that the plaintiff was a small child when his mother died and his elder sister, defendant 2, took care of him and defendant 1 who married her came to live as ghar jamai, and during his infancy they exercised their influence on him.

(2.) During his minority, his case is that they and defendant 3 managed the estate and embezzled large sums of money and when he was 20 years old, they induced him to execute three deeds of release to the extent of one lac of rupees on the representation that his father desired that the gifts should be made, but that there was nothing in his will to that effect. The learned Subordinate Judge criticised the affidavit filed on behalf of the plaintiff ; but having regard to the provisions of Order 38, Rule 5(1) and Order 39, Rule 1 which provide that the facts might be proved by affidavit or otherwise the learned Judge should have taken into account the admission of defendant 3 that immediately before the suit he had been trying to dispose of one of the properties. All these properties had been bought during the time they were managing the estate. The learned Judge was wrong to criticise the plaintiff for not paying sufficient court-fees for consequential relief, inasmuch as the suit should be valued according to the statement of the plaintiff. The plaintiff stated in the plaint that he was in his possession of all the six properties, that he himself was in direct possession of one property and the other five properties were let out to tenants from whom he was getting rents and that the learned Judge was wrong in holding that the defendants were in possession of the properties.

(3.) It was suggested that the appeals were made very late. It was urged in reply that the petitions were made immediately the suit was filed and they were disposed of on 17th November and thereafter the plaintiff made no delay but immediately obtained copies of the necessary documents and filed the appeals in the beginning of December and it was not his fault that the appeals were not heard till the middle of February. In my view, we should admit these appeals, look at the records and hear the parties before forming our final opinion. Lort-Williams. J.