KHITISH CHANDRA BANERJEE Vs. THAKOMANI DEBI

JUDGEMENT

(1.) The plaintiffs in this suit are Thakomani Debi, the widow, and Umamoyee Debi, the daughter of Durgadas Chatterjee deceased. They seek to recover a six-annas share of a certain tank which originally belonged in its entirety to Durgadas. It appears that in the year 1886 Durgadas executed a deed of gift in respect of a three annas share of the tank in favour of the plaintiff Umamoyee and another daughter since deceased. In the year 1890 Durgadas again executed a deed of gift of another three annas share of the tank in favour of Thakomani. In the same year 1890 he died leaving a Will by which he appointed his son Annoda his executor. On the 15th October 1892 Annoda as executor mortgaged certain properties, not including the tank, in favour of the father of the defendants. In 1899 the father of the defendants obtained a decree on the mortgage in a suit to which Annoda in his capacity as executor and Thakomani were made parties. In execution of that decree the mortgaged properties were sold but as the proceeds proved insufficient to satisfy the amount due on the mortgage, further proceedings were taken under Section 90 of the Transfer of Property Act. In those proceedings on the 21st February 1902 the whole of the tank to which the suit relates was sold and purchased by the decree-holder, the father of the defendants. On the 30th May 1902 the decree-holder obtained possession through the Court.

(2.) The case made for the plaintiffs is that Thakomani is entitled to a 4 1/2 annas share of the tank under the deed of gift in her favour and as heir of her deceased daughter, who took a one and a half-annas share under the other deed of gift, and that under the latter deed, the daughter Umamoyee is entitled to a one and a half-annas share. The Courts below have held that the daughter has proved her right to the l 1/2 annas share and the decrees are in her favour to that extent. There is now no further dispute as regards the daughter s claim, though the appeal before us seems to relate to the whole of the six annas. It must now, therefore, be formally dismissed so far as the 1 1/2-annas share belonging to Umamoyee is concerned.

(3.) As to the 4 1/2-annas share which the widow claims, both the Courts below have found that the deeds of gift represent genuine transactions and that the widow has established her title to this share. The first Court, however, found that the suit was not commenced within the period of limitation prescribed and dismissed this part of the claim. On that point, the learned District Judge has taken a different view. He has held that the widow is entitled to recover the 4 1/2-annas share. From that decision the defendants have appealed.