NAGENDRA NATH BISWAS Vs. KRIPANATH BHATTACHARJEE

JUDGEMENT

(1.) THIS appeal is by plaintiff 2 and is concerned with the validity of a sale by one Jogtara Debi, widow of Kali Nath Sarma who was the owner of one-sixth of the property which was the subject-matter of the suit. The kobala was executed in favour of plaintiff 3; but she did not dispute that the purchase was really made by all the plaintiffs. The plaintiffs supported the sale on two grounds (1) that Jogtara obtained an absolute interest in the property by her husband's will (2) that in any event the sale was for legal necessity. Both these points were decided in favour of the plaintiffs by the Munsif. THIS decision was reversed by the Subordinate Judge. It is now contended that the decision of the learned Munsif on both points was correct. On the first point the learned Subordinate Judge appears to have applied the correct principles. He points out that if the will conveys an absolute interest, the subsequent provisions cutting it down would have no effect. But he points out that there is no clause in the will which confers any absolute interest. THIS is undoubtedly correct and is sufficient to dispose of this point.

(2.) ON the second point it is contended on behalf of the appellant that the case is covered by the principles enunciated in the case reported in Bauga Chandra Dhur Biswas V/s. Jagat Kishore 1916 PC 110. The necessity for the sale alleged in the payment of debts contracted is connexion with the sradh of Kali Nath and the probate proceedings. The learned Subordinate Judge's judgment on this part of the case is not very clear. But I have no doubt that he intended to find that the existence of these debts has not been proved. The difficulty in the way of the appellant is that no real attempt was made in the Court of first instance to establish facts, which would bring the case within the rule laid down in the decision referred to above. The time that elapsed between the execution of the kobala and the institution of the suit was about 22 years. It could not be assumed that after the elapse of this time, it is not possible to establish the existence of the debts by evidence. No attempt was made to show that the persons who might prove this are no longer alive. Then again no attempt was made to establish any bona fide inquiry. ON this point the plaintiffs themselves were certainly in a position to give evidence. But there was never even a suggestion that any inquiry was made. In fact at the trial the plaintiffs were content to rest their case on a proof of the actual existence of the debts by evidence which has not satisfied the learned Subordinate Judge. The result of his finding is that the only thing proved by the plaintiffs is that a representation as to the existence of the debts was made at the time of the execution of the kobala. This is clearly not enough to defeat the claim of the reversioners. The appeal is accordingly dismissed with costs. The appellant asks for leave to appeal. As the other plaintiffs did not even join in the appeal, this is refused.