NARENDRA NARAIN CHOUDHURI Vs. NAGENDRA NARAIN CHOUDHURI

JUDGEMENT

(1.) This is an appeal by the plaintiff against the judgment and decree of the Subordinate Judge, Assam Valley Districts, dismissing the plaintiff's suit for recovery of possession of an estate which has been described as the Mechpara Estate. Plaintiff's suit is based upon the allegations made in the first paragraph of his plaint that the Mechpara zemindars belong to a well known Rajbansi caste and the Mechpara Estate has been impartible and inalienable since time immemorial by virtue of the kulachar or custom governing the same family. Plaintiff then goes on to state that his grandfather Prithiram, was married to three wives and he had some children begotten of a maid servant by the name of Purnimeswari. His grandfather died in 1875 and disputes broke out among the sons of Prithiram and in order to purchase peace, his father, Khagendra, the other legitimate sons of Prithiram and the son born of the lady, who was called the maid servant, entered into a compromise, evidenced by a solenama, dated 14th December 1875, by which they had divided the estate into different shares. Khagendra died in February 1910, and the plaintiff has been since then in possession of one anna, odd share of the estate. He now brings this suit for recovery of possession of 14 annas odd share of the estate as against his own brothers, who are defendants 1 to 5 and the other descendants of Prithiram. He asks for a declaration that he is entitled to the property as the eldest representative of the eldest line of Prithiram's descendants. A short genealogy would be useful in understanding the claims of the parties:

(2.) The plaintiff describes Purnimeswari as a maid servant who was the mistress of Prithiram. His story is that the sons born of Purnimeswari, Tilokram, Lokenath and Bholanath were all illegitimate. Tilokram is dead and is now represented by his widow, Gobinda Priya defendant 12, and an adopted son defendant 13. Lokenath is dead. He died without leaving any descendants. Bholanath is alive and he is defendant 11 in this suit. Of the sons born of Prithiram's wife, Indreswari, Khogendra was the father of the plaintiff and his brothers, defendants 1 to 5. The second son was Kamala Kanta who is dead and is represented defendant 9. Prithiram had only one son born of his wife Debeshwari named Uddhab Ram, who is dead, and is represented by his sons, defendants 6, 7 and 8. Defendants 1 to 5 do not contest the plaintiff's suit. They are, as I have already stated, the brothers of the plaintiff. Barring them, all the other defendants contest the plaintiff's claim. Defendant 14 is a manager of the estate under the management of the Court of Wards.

(3.) The defendants who contested the suit in the Court below and who also appear as respondents in this Court deny the allegations of the plaintiff as regards the kulachar or family custom of primogeniture or impartibility. Some of the defendants also contest the allegations of the plaintiff that Purnimeswari was not the married wife of Prithiram. On the by his son, defendant 10 and defendants 10 (a) and 10 (b). The third son was Bhadreswar, who is dead and is represented by his son, allegations of the parties several issues were framed in the Court below, but the only issues of importance which have been discussed before us are three. Those are issues 7, 8 and 10 which are in the following terms: Issue 7. " Is there any custom or kulachar governing she Mechpara family as alleged, and if so, is the Meohpara Estate impartible and inalienable by reason of such custom and Kulachar ? " Issue 8. " Is the succession to the Mechpara Estate governed by the rule of primogeniture as alleged or by the ordinary rules of succession according to the Dayabhaga School of Hindu Law ? " Issue 10 " Were Tilokram, Lokenath and Bholanath illegitimate sons of the late Prithiram Choudhuri and as such excluded from inheritance ?