SHAMBO CHANDRA DE Vs. KARTICK CHUNDER DEY

JUDGEMENT

(1.) After giving pedigree his Lordship proceeded. The plaintiff sued for a declaration that he is entitled to receive; the rent of a patni to the extent of 8 annas from the defendant. The facts are not disputed. The patni mehal belonged to Rashbehary Chodhury, and on his death was inherited by his sons Sadananda and Bankubehary in equal shares. Sadananda's 8 annnas share was inherited by his sons Nimai and Badan, each having a 4 annas share. Badan's 4 annas share was inherited, on his death, by his daughters Nityamoyee and Kritarthamoyee, and on the death of the former her interest passed on to the latter. Nimai's 4 annas share passed on his death, to his widow Pearymoyee, and on the latter's death to Haridas, son of Kritarthamoyee. Kritarthamoyee and. Haridas leased the 8 annas patni right to defendant. Haridas died leaving a widow, Kirandasi, who is also dead, and Kritarthamoyee died after her. The plaintiff's case is that on the death of Kritarthamoyee he has inherited the said 8 annas interest.

(2.) The Munsif decreed the suit. The Subordinate Judge, on appeal, has given the plaintiff a decree for the 4 annas share which Kritarthamoyee has inherited from Badan and has disallowed the plaintiff's claim to the 4 annas share which Haridas had inherited from Nimai. The plaintiff has preferred this appeal which relates to the 4 annas share so disallowed. There is no cross-appeal on behalf of the defendant and we are no longer concerned with the other 4 annas share.

(3.) The Subordinate Judge has observed in his judgment that so far as Nimai's 4 annas share is concerned, Haridas got it absolutely and Haridas was the last male owner through whom the plaintiff should have claimed, but instead of that the plaintiff had rested his claim as heir of Badan and the claim, therefore, was misconceived. He has further observed that the plaintiff had not alleged that there was no person in the paternal family of Haridas who was competent to take as heir or that the plaintiff himself was such a person. On these grounds he dismissed the plaintiff's claim to the said 4 annas share. There is, however, very little substance in those grounds; for the necessary facts are all alleged in the plaint, while it is not alleged on behalf of the defendant that there was any person in Haridas paternal family competent to take as his heir. To justify the dismissal of the claim a positive finding as to the existence of such a person would be necessary, provided, of course: that the plaintiff is competent to inherit at all under the the Bengal School of Hindu Law.