DURGA DAS KHAN Vs. ISHAN CHANDRA DEY

JUDGEMENT

(1.) The suit out of which this appeal arises is a suit between two purchasers. The plaintiffs represent the purchaser from the heir of the property in dispute, and the defendants the purchaser from the sons of a legatee of this property. The original owner was the husband of one Bhubaneswari Debi. After his death and that of her son, Surjya Kumar, she succeeded to a woman s estate in the property. By a Will which she executed, she recited the her son Kali Kumar was a person of dissolute habits and that it was not desirable that her property should go to him. She accordingly left it to her daughter, Surat Kumari, with a proviso that if male children should be born to Kali Kumar, then on their attaining 25 years the said son or sons should succeed to the whole estate. This Will is admittedly invalid, because the testatrix had no interest of which she could dispose by Will, and it further contains an ineffectual bequest to unborn grandsons. Under it her daughter Surat Kumari entered into possession and continued in possession until her death. During her lifetime Kali Kumar, and after his birth, his son Santosh lived jointly with her, and the provision of the Will regarding the payment of an allowance to the son was fulfilled.

(2.) The Trial Judge held that the Will was a collusive one, and that it was also in the nature of a trust. He, therefore, held that the possession of Surat Kumari was never adverse to Kali Kumar and his son, and that, therefore, the suit was not barred by limitation. He accordingly decreed the plaintiff s suit. The first Appellate Court, on the other hand, held that the Will was not a collusive or colourable document, and that, therefore, the possession of Surat Kumari was adverse to Kali Kumar and his son. He also held that Kali Kumar and his heirs were estopped by conduct from disputing the title of Surat Kumari. He has accordingly dismissed the plaintiffs suit.

(3.) On second appeal three grounds are argued: first, that the possession of Surat Kumari was not adverse to Kali Kumar; secondly, that Surat Kumari and her successors are estopped from disputing the claim of Kali Kumar s son; and thirdly, that the finding of the lower Appellate Court as regards estoppel against Kali Kumar and his successors is mistaken. On each of these points the appellants are entitled to succeed.