ASITA MOHAN GHOSE MOULIK; NERODE MOHAN GHOSE MOULIK Vs. NERODE MOHAN GHOSE MOULIK; ASITA MOHAN GHOSE MOULIK

JUDGEMENT

(1.) One Radha Mohan Ghose Moulik, a Bengali Kayastha zemindar of the District of Murshidabad governed by the Dayabhaga School of Hindu Law, died intestate on the 16th Vadro 1300 = 2nd September 1903. In the Collectorate Register he was recorded as the proprietor of certain zemindari properties and as shebait of certain debutter properties. Shortly after his death Sailendra Mohan Ghose Moulik applied for registration of his name under the Land Registration Act in respect of 8 annas of both the zeminlari and debutter properties, alleging that he had been adopted by Radha Mohan as his son on the 26th Joistha 1283--7th June 1876 and that Asita Mohan Ghose Moulik, who was born on the 29th May 1289 as the afterborn natural son of Radha Mohan Ghose Moulik, was entitled to the other 8 annas. Asita Mohan objected to Sailendra s application denying his adoption and applied for registration of his name in respect of the entire 16 annas as the only son and heir of Radha Mohan. The Land Registration Officers held that Sailendra was the adopted son of Radha Mohan and registered his name in respect of 8 annas of the zemindari properties only and Asita s name in respect of other 8 annas and as shebait of the entire debutter properties. Sailendra died on the 22nd Aswin 1312 = 8th October 1905, leaving Nirode Mohan and Khirode Mohan, his sons. They instituted Suit No. 79 of 1909 in the Birbhum Court for a declaration that they were entitled aa shebaits by descent from their father to 8 annas of such properties as were debutter. They asserted that the properties set out in Schedules Kha and Ga to their plaint were not debutter, and prayed for declaration that they were entitled to one- half of these properties as proprietors, but submitted in the alternative that if the Court found that those properties were charged with deva sheba expenses, they should be declared entitled thereto and to possession thereof as proprietors, subject to such charge, or if the Court found them to be absolute debutter, they submitted that they were entitled thereto as co-shebaits, to the extent of 8 annas.

(2.) Asita Mohan, on the other hand, instituted Suit No. 134 of 1909 in the same Court for declaration of title to and possession of the whole of mat or zemindari properties as the sole heir of Radha Mohan and claimed that Kismat Binderpore (Tauzi No. 9552) recorded by the Land Registration Officers as mal property was really the debutter property of Radha Gobind Jiu. Both these suits were tried together (see Order No. 18, dated 31st January 1910, in Suit No. 79 of 1909 and Order No. 8 of same date in Suit No. 134 of 1909) and one judgment has been delivered in both.

(3.) The learned Subordinate Judge has held (i) as to adoption: (1) That Radha Mohan s family is a family of Bengal Kayasthas, who are Sudras, amongst whom the ceremony of "giving and taking" only is necessary for the validity of an adoption. (2) That Sailendra Mohan was given by his natural father, Kumar Narendra Chandra Roy, to Radha Mohan Ghose Moulik, who took the boy in adoption on the 26th Joistha 1283 = 7th June 1876 and that the adoption was notcontrary to law or custom in any respect. That an ekrar-patra (Exhibit 13) was executed by Radha Mohan addressed to Kumar Narendra Chandra Roy, the natural father of Sailendra Mohan, and a deed of gift (Exhibit 64) was executed by Kumar Narendra Chandra Roy in favour of Radha Mohan at the time of the said adoption and that both the documents are genuine, valid and operative. (3) That being Sudras, Sailendra as the adopted son of Radha Mohan was entitled to share equally with Asita Mohan, the after born natural son, and that he was also so entitled according to the terms of the ekrar-patra (Exhibit 13). (ii) As to the debutter properties: (1) That Kismat Binderpore mentioned in Suit No. 134 of 1909 was not debutter nor was it ever treated as debutter. (2) That as to the properties in Schedules Kha and Ga annexed to the plaint in Suit No. 79 of 1909, Harishchandrapur, Taraf Mandar (appertaining to Huda Kutubpur and Fatehpur) were not debutter, but all the others were absolute debutter and not merely charged with deva sheba expenses. (iii) That Sailendra Mohan had no right to be a shebatt in respect of the deva sheba or the debutter properties in the presence of the natural born son Asita Mohan, and, therefore, Sailendra s sons had no such right.