NARENDRA NATH SEN Vs. MAHASAY GANESH PRASAD RAY

JUDGEMENT

(1.) This is an appeal against a decree of the Subordinate Judge of Cuttack, dated 25 March 1989. The appeal has been filed by defendants 1 to 3 and the plaintiff- respondents have raised a preliminary objection that this appeal is not maintainable. We have heard Mr. B.C. De for the plaintiff-respondents and Mr. M.S. Rao for the appellants on this preliminary objection. Both the appellants and the plaintiff-respondents are claiming the estate of one Rai Bahadur Govind Ballabh Rai who died in July 1896 leaving surviving him his second wife and an unmarried daughter by her and either one or two daughters by his first wife. The second wife Swarnamai succeeded to the estate on his death and remained in possession until her death on 14 September 1935. The plaintiff-respondents then claimed the estate as the nearest reversioners of Gobind Ballabh Rai, their case being that Gobind Ballabh had only one daughter by his first wife and had no descendants who were entitled to inherit still living on the death of the widow Swarnamai. The original defendant in the suit was named Binodini and after her death, her sons, the present appellants, have been substituted in her place. Their case is that Binodini was the second daughter of Rai Bahadur Gobind Ballabh Rai by his first wife and that she was entitled to the estate on the death of the widow Swarnamai and that on her death the appellants were entitled to the estate. They also denied the plaintiff's claim to be the nearest reversioners of Rai Bahadur Gobind Ballabh Rai.

(2.) Disputes arose almost at once after the death of the widow Swarnamai which took place on 14 September 1935. On 14 October 1935 the plaintiffs applied for registration of their names in the Land Registration Department. On 80th November 1935, they applied to the District Judge under Section 192, Succession Act, and their application was registered as Miscellaneous case No. 55 of 1935. A similar application was filed by Binodini on 13 January 1936, which was registered as Miscellaneous case No. 3 of 1936. On" 20 January 1936, the District Judge appointed an ad interim curator of the estate. On 15 April 1936, the plaintiffs filed the suit out of which this appeal arises. The main relief claimed in the plaint as originally filed was that it may be declared that on the death of the widow Swarnamai Dasi the plaintiffs as the nearest reversionary heirs of her husband have succeeded to the disputed properties and that the defendant has no lawful title to the same.

(3.) The only other reliefs claimed were costs and any further relief the Court might award. On 16 May 1936, the District Judge decided Miscellaneous case No. 3 of 1936 in favour of Binodini and ordered the ad interim curator to hand over possession to her. On 19thMay 1986 the plaintiffs applied in the suit for appointment of a Receiver and on the same day the Subordinate Judge asked the ad interim Receiver not to deliver possession until further orders and on 5 June 1986 the Subordinate Judge appointed Receiver in the suit to take charge of the estate. On 1 July 1986 the plaintiffs amended their plaint by adding to the main relief the words: "That the possession of the plaintiffs be confirmed or in the alternative a decree for recovery of possession be passed in favour of the plaintiffs." Binodini died on 17 January 1938 and the present appellants were substituted in her place, and on 25 March 1939 the trial Court gave the plaintiff- respondents a decree declaring that on the death of the widow Swanramai the plaintiffs were the nearest reversionary heirs of the late Rai Bahadur Gobind Ballav Rai and as such they succeeded to the properties described in Schedules Ka, Ga except lot No. 7 and Gha and that possession be declared or delivered to them over the said properties. There were certain incidental directions in the decree which are immaterial for the present purpose.