RAJA JOGENDRA NARAYAN DEB Vs. DEBENDRA NARAIN RAI

JUDGEMENT

(1.) Raja Kumud Narain Bhup was the owner of the zamindary known as Bijni Raj. He died on 9 March 1883 leaving two widows Rani Siddeswari and Rani Abheyeswari. Rani Siddeswari died in 1891. The petitioner in Rules 174 and 175, Raja Jogendra Narain Bhup who was born on 23 July 1884 was nominated Raja of Bijni Raj by Rani Abheyeswari on 28 September 1895. Raja Jogendra Narain attained majority on 23 July 1902. Rani Abheyeswari made a will on 30 August 1918 whereby she dealt with Bijni Raj as her own property and appointed opposite party No. 1 in the above Rules as the executor of her will. On 22 September, 1919 Bhairabendra Narain Deb, the petitioner in Rule 209, instituted a suit for recovery of possession of the Bijni Raj against Raja Jogendra Narain on the allegation that the latter became insane when he was 15 or 16 years old. On 17 June 1920 Raja Jogendra filed a written statement in that suit alleging inter alia that he was not insane till 1904. The opposite party in these Rules was impleaded as a defendant in this suit. His defence was that Rani Abheyeswari acquired title to Bijni Raj by adverse possession for more than 12 years. He however did not say anything about the insanity of Raja Jogendra in his written statement. In August 1920 one Samarendra filed another suit at Goalpara which was subsequently transferred to the Court of the Subordinate Judge at Alipore against Raja Jogendra alleging that the latter was insane from his boyhood and was therefore disqualified from succession. Raja Jogendra filed his written statement in this suit in June 1921 alleging that up till 1904 he was not insane.

(2.) When both the suits were pending the opposite party No. 1 in these Rules filed a suit in May 1930 for declaration of his title to the Bijni Raj as executor to the estate of late Rani Abheyeswari. On 25 October 1930, Samarendra's suit was dismissed on contest. On that day a petition of compromise was also filed in that suit as well as in the suit instituted by Bhairabendra. The result of this compromise was that Raja Jogendra became the owner of the Bijni Raj for life and Bhairabendra was declared to be the owner of the Raj after the death of Raja Jogendra. On that day Purnendra Narain who claims to be a member of the Bijni Raj family filed a suit against Raja Jogendra and others making substantially the same allegations as Bhairabendra and Samarendra did in their suits: Raja Jogendra also filed a suit on 25th October 1930, against the opposite party No. 1 in these Rules for recovery of possession of 55 Ballygunj Circular Road which apparently was not in his possession at the time. Raja Jogendra filed his written statement in February 1931 in the suit which was instituted by the executor to the estate of late Rani Abheyeswari in May 1930. In March 1931 Raja Jogendra filed his written statement in the suit which was started by Purnendra on 25 October 1930. In these written statements Raja Jogendra's defence was the same as in the suits of Bhairabendra and Samarendra. In May 1931 the Bijni Succession Act was passed by which Raja Jogendra was declared to be the proprietor of the Bijni Raj and it was declared by that Act that Bhairabendra would become the owner of the Raj after the death of Raja Jogendra. Additional written statements were filed by Raja Jogendra in the suits pending against him on the basis of this Act. In 1933 certain preliminary issues regarding the effect of this Act on the pending litigation regarding the Bijni Raj were tried and the suit instituted by the executor to the estate of the late Rani Abheyeswari in May 1930 was dismissed by the learned Subordinate Judge. An appeal was taken to this Court by the opposite party and in March 1936 the decree of the learned Subordinate Judge dismissing the suit was set aside and the case was remanded to the lower Court for further hearing.

(3.) On 17 November 1936 Raja Jogendra made two applications before the learned Subordinate Judge, one for amendment of his written statement in the suit of the executor and the other for the amendment of the plaint in the suit raised by him for recovery of possession of the Ballygunj property. Bhairabendra the petitioner in Rule 209 also made a similar application for amending his written statement in the suit instituted by the executor. In these petitions the petitioners alleged that Raja Jogendra became insane before he attained majority in the year 1902, evidently with the object of meeting the plea of adverse possession taken by the executor to the Estate of late Rani Abheyswari. These applications were opposed by the executor on the ground of delay and want of bona fides. The learned Subordinate Judge was of opinion that there was no delay as no evidence has yet been taken in the suits. As regards the question of bona fides the learned Subordinate Judge pointed out that in the previous suits the defence of Raja Jogendra was that he was quite healthy up till 1904 and that on such defence he got a decision in his favour in the suit brought against him by Samarendra, and then observed: In this case however not a scrap of paper has been placed before me to establish a prima facie case that on or before 23 July 1902 the Raja was insane. Dr. Basak arguing the case for the Raja has contended that Ex. Z 64 in Suit No. 51 would show that the Court found in that case on the basis of that document dated 18 March, 1903 that on that date at least the Raja was inflicted already with insanity and that being only eight months after the date of attainment of majority, this amendment would be allowed to enable the Raja to adduce evidence that at the date of attainment of majority also be was already an insane. I am unable to accept this contention unless any document is produced showing on the face of it that the Raja was insane on 23 July 1902.