SOURAB BIBI Vs. ABBAS ALI BISWAS

JUDGEMENT

(1.) It is necessary first of all to state the facts which arise in this appeal. There was a raiyati holding which was the property of two brothers Molam and Madhab. Molam died without leaving any issue and the whole 16 annas thereupon passed to Madhab who died in the year 1904 or 1905 leaving him surviving three sons and two daughters one of whom is the Plaintiff No. 1 in the suit, the Plaintiffs Nos. 2 to 4 being the heirs of the 2nd daughter. In 1914 the holding was attached at the instance of one Ijjatulla. As the result of a compromise Ijjatulla got 6 & 1/2 annas and the heirs of Madhab the remaining 9 & 1/2 annas. Madhab's three sons in the year 1919 transferred their interest in the property to Defendant No. 1 in the suit. Up to that time the heirs of Madhab, that is to say, his three sons had been in possession of the property.

(2.) The first Court decreed the plaintiffs suit which was to establish their title to 4 annas of the property and for joint possession thereto. The lower appellate Court has reversed the decision of the first Court.

(3.) It seems to us that the judgment of the learned Subordinate Judge is founded upon a misapprehension of the law. He says that the suit is barred by the provisions of Art. 123 of the Limitation Act it having been brought more than 12 years after Madhab's deaths Clearly, on the facts which I have stated, Art. 123 has no application whatsoever. The suit was brought against Defendant No. 1 who did not in any way represent Madhab's estate. In these circumstances, it is impossible to contend that the provisions of Art. 123 have any application whatsoever. The limited application of that article has been pointed out in the case of Issur Chunder V/s. Juggut Chunder [1883] 9 Cal. 79. It is there pointed out that this article only applies to cases in which the property sought: to be recovered is not only a legacy, but is also sought to be recovered as such from a person who is bound by law to pay such legacy, either because he is executor of the Will or otherwise represents the estate of the testator. So much then for the first ground upon which the learned Subordinate Judge decided the appeal- before him.