(SRIMATI) SAROJ BALA Vs. JATINDRA NATH BOSE

JUDGEMENT

(1.) This is an application for leave to appeal to His Majesty in Council against a final order made by this Court on the 28 of July 1926 in Appeal from Original Order No. 53 of 1924 arising out of Title Suit No. 191 of. 1920 in the Court of the 2nd Subordinate Judge of the 24 Perganas the order complained of is one which affirmed the decision of the Court immediately below. As regards the amoun for value of the subject-matter of the suit in the Court of 1st instance and in dispute on appeal to His Majesty in Council, it is more than Rs. 10,000. In these circumstances the only question that has got to be enquired into is whether the appellant for leave to appeal to His Majesty in Council has satisfied this Court that the appeal involves soma substantial question of law. The facts shortly stated are as follows.

(2.) On the 18 of August 1920, the said suit was filed in the Court of the 2nd Subordinate Judge of the 24-Perganas by the plaintiff Profulla Kumar Bose against four defendants for partition of the estate of one Priya Nath Bose who was the grandfather of the plaintiff and the father of Defendants Nos. 1 and 2 and the father-in-law of Defendants Nos. 3 and 4. It is unnecessary to mention the names of the defendants other than the Defendants Nos. 3 and 4. Defendant No. 3 is Sm. Niroj Sundari Bose, the widow of the eldest son of the testator and the applicant for leave to appeal to His Majesty in Council is Defendant No. 4 Sm. Sarojbala Bose.

(3.) It appears that on the 21 of June 1921, a petition of compromise to which the Defendant No. 3 was no party, was filed before the Subordinate Judge. The testator Priya Nath Bose had left a Will under which the Defendant No. 3 was entitled to a maintenance of Rs. 25 a month and a right of residence in the family dwelling house No. 73, Amhereat Row. As stated above she was no party to the petition of compromise and she had at no time entered appearance in the suit itself. There was no dispute, however, as regards the rights of the Defendant No. 3 in the estate left by the testator Priya Nath Bose. When the petition of compromise was brought to the notice of the learned Subordinate Judge, he came to the conclusion that as the plaintiff had not adduced any evidence whatsoever as against the Defendant No. 3, the suit should stand dismissed as against her and ha passed an order accordingly. As regards the parties to the petition of compromise, the learned Subordinate Judge finding that there was no dispute as regards the shares of the other parties in and to the estate of the testator and further that the parties had waived accounts as against each other, passed a preliminary decree in accordance with the petition of compromise. One of the terms, being Clause 9 of the petition of compromise, provided for a reference to certain arbitrators named therein to partition the estate of the testator by mates and bounds.