KRISHNA CHANDRA DUTTA ROY, MINOR, BY HIS MOTHER AND NEXT FRIEND PROMADAMOYEE DASYA ALIAS SANTAMOYI DASYA Vs. HEMAJA SANKAR NANDI MOZUMDAR

JUDGEMENT

(1.) This appeal is preferred by defendant No. 18 and arises out of a partition suit brought by Hemaja Sanker Nandi Mozumdar and others against a number of defendants for partition of a taluq known as Tilak Nandi Ram Mozumdar No. 2624 with a Sudder Jama of Rs. 27-12-0. Out of the same case arose Appeal No. 328 of 1914 which we decided last week. The dispute in the present appeal is between Krishna Chandra Dntta Roy--defendant No. 18--the minor son of Jagan Chandra Dutta Roy and his wife Promoda Moyi on the one side and the plaintiffs who are the descendants of Pran Shanker on the other. The relationship of the parties will appear from the following genealogical table. There is no dispute as to the share of the plaintiffs in this estate which they inherited from their ancestor Pran Shanker. They claim, however, in addition to that 5-annas 10-gundas share a portion of another 5-annas 10-gundas share which in ordinary course of inheritance would have devolved from Bimola Shanker upon his sister s son, the present appellant.

(2.) The plaintiff s case is that by a mimanshapatra dated 28th March 1903, Gagan Chandra Dutta Eoy acting as the natural guardian of his minor son relinquished in favour of the plaintiffs a part of the minors s share in the estate on consideration of the plaintiffs not pressing the claim which they had to the whole of that share under an alleged Will of Krishna Shanker Nandi Mozumdar. The only question before us is whether that relinquishment is binding on the minor appellant. The learned Subordinate Judge has found that there was such a Will as the plaintiffs allege, that the plaintiff s claim under it was honest and bonafide and that it accordingly formed a good consideration for the relinquishment.

(3.) The following facts are not in dispute. Krishna Shanker Nandi Mozumdar died on 10th March 1902, leaving him surviving his widow Bhuban Moyi, an adopted son Bimola Shanker, and a daughter Promoda Moyi, the mother of the appellant Bhnban Moyi died about a year after her husband, sometime in 1309. Bimola Shanker at the age of 11 or 12 died on llth March 1906. At that time the present appellant was only 2 or 3 months old. He was the next heir of his maternal grandfather. It was not till after Bimola Shanker s death that anything was heard of this alleged Will, but as soon as he had died the plaintiffs came forward with their claim. We have been taken through the evidence of both parties and have examined it minutely, and I think that the only possible conclusion on that evidence is that there was no such bona fide claim as the plaintiffs would have us believe. It was argued that the plaintiffs could not at this distance of time be expected to prove this Will on solemn form. I do not think that any such obligation lies upon them. It was, however, necessary for them to show that there was a Will and that upon that Will they had a claim which was made honestly and in good faith.