DWIJAPADA DAS Vs. KALIPADA DE

JUDGEMENT

(1.) This is an appeal by Defendants Nos. 1, 2 and 8 against the judgment and decree of the Subordinate Judge of Burdwan, dated the 19 June 1921. The suit was instituted by three persons for possession of B-annas share of certain properties which originally belonged to one Durga Charan Baral The Plaintiffs Nos. 2 and 3 claimed as heirs of one of the daughters of Durga Charan named Nistarini Dasi and Plaintiff No. 1 claimed on the strength of purchase of the share of another heir named Jogesh Chandra Dhar, and a portion of the shares of Plaintiffs Nos. 2 and 3. Durga Charan had two daughters, Nistarini and Gokul Sundari. He died in 1872 after having executed a Will. Letters of Administration with the Will annexed were, obtained by Nistarini and Gokul Sundari, the two daughters of Durga Charan. After that this property-was the subject of various legal proceedings. Two attempts were made during the lifetime of those ladies for revocation of the Probate on various grounds which it is unnecessary to mention now. Gokul Sundari died in 1313 B.S. Nistarini died in 1316 B.S. The exact date of Nistarini's death is not mentioned, but it was sometime in November 1909. After the death of Nistarini various persons claimed the properties left by her and applied for Letters of Administration of her estate as her heir, as under the Will of Durga Charan the heirs of Nistarini were entitled to succeed to the property before other persons. The question as to who was entitled to the Letters of Administration was raised in the proceedings in 1,910 and the matter was decided by the Subordinate Judge on the 20 August 1912. The Letters of Administration were issued in favour of the Defendant No. 1 as the nearest heir of Nistarini. It will be necessary here to give the genealogy under which the plaintiff based their title. (After setting out the genealogy his Lordship continued.) The Defendant No. 1 admits the genealogy except that he says that Bhubaneswari his mother was the daughter of Krishna Prosad and that he is the nearest heir of Nistarini's stridhan properties being her husband's sister's son. His opponent in the Letters of Administration proceedings was Gokul, whose case was that Dwijapada, Defendant No. 1, had no connexion with the family. The other brother of Gokul who was then alive does not appear to have made any application for Letters of Administration, and it is a question whether he was a party to those proceedings in the Court of first instance. The Defendant No. 1 has been in possession of the properties since the grant of Letters of Administration and Defendants Nos. 2 and 3 are purchasers of certain lands from Defendant No. 1.

(2.) The present suit was instituted on the 3 November 1921. The Subordinate Judge has found that it was brought on the last date on which the suit might have been instituted according to the Law of Limitation, that is, on the very last day of the expiry of 12 years from the death of Nistarini. The plea of the plaintiffs is that the Defendant No. 1 was really the son of a daughter of Ramdhan, in other words, Bhubaneswari his mother, was the daughter of Ramdhan; therefore, the Defendant No. 1 would not be the heir of Nistarini as regards her stridhan property, bit the heirs at the tim3 of her death would be Banwari and Gokul. The Plaintiffs Nos. 2 and 3 claim there properties by virtue of inheritance from Gokul and Plaintiff No. 1 by purchase from the son. of Banwari and also from Plaintiffs Nos. 2 and 4. The Defendant No. 1's case, on the other hand, is that he is really the nearest heir of Nistarini's stridhan and the question as regards the relationship is barred by the rule of res judicata.

(3.) The Subordinate Judge has put the question in a short way : If Defendant No. 1 is the sister's son of Hari Madhab, then the plaintiffs are not entitled to succeed, but if he is found to be the son of a female cousin of Hari Madhab then the plaintiffs are entitled to succeed. Several issues were raised in the Court below. Some of the issues were taken up first for decision by the Subordinate Judge who was a different Judge from the one who decided the case finally. The important question that he decided was the question of res judicata and, in his opinion, the question as to the relationship was not res judicata, because he thought that the decision of the Subordinate Judge of 1912 was the decision of a Court acting under Act 5 of 1881 (the Probate and Administration Act) and cannot, therefore, operate as res judicata in the present suit. The judgment with regard to this issue was delivered in April 1923. The case then came on for trial on the other issues and the final judgment was delivered in June 1924. The Subordinate Judge, who finally tried the case rightly considered that be was bound by the decision on the issue on res judicata by his predecessor, and upon that finding he proceeded to decide the question on the evidence as regards the fact of the relationship of the parties to Nistarini Dasi and her husband. He came to the conclusion upon the evidence that the plaintiffs have succeeded in proving that Dwijapada the Defendant No. 1 was not Nistarini's husband's sister's son, but he was the son of the daughter of Ramdhan, and, therefore, the plaintiffs were entitled to succeed in their suit.