RAJLAKSHMI DASSI Vs. BHOLANATH SEN

JUDGEMENT

(1.) This is an appeal from a judgment and decree of the High Court of Judicature at Fort William in Bengal dated 8 March 1935, which affirmed the judgment and decree, dated 15th May 1930, of the Special Land Acquisition Judge of the 24 Parganas on a reference made to him under Section 18, Land Acquisition Act (1 of 1894) by the Second Land Acquisition Collector, Calcutta. The question in the appeal is whether the appellant is entitled to the compensation money awarded in respect of the acquisition of part of the premises 2, Deb Lane, in the town of Calcutta, as successor to the estate of Raj Ballav Seal, of which the said premises formed part. Raj Ballav died on 10 June 1870, leaving him surviving his widow Mati Dassi and three grandsons, who were sons of a predeceased daughter by another wife, of whom one died in 1880 unmarried. Respondent 1 is another grandson and respondent 2 represents the third grandson, who died in 1905. The grandsons' line is hereinafter called "the Sens". Respondents 3 to 11 represent the mortgagee of the Sens. The following pedigree shows the descendants of Raj Ballav : Raj Ballav left a will giving his widow Mati Dassi authority to adopt a son to him and giving benefits to the said widow, to the son to be adopted and to the Sens. On Raj Ballav's death in 1870, Mati Dassi entered into possession of the estate and adopted Jogendra Nath Seal in 1873, under the authority conferred on her. Jogendra married Katyani and the present appellant is their only child; Jogendra died in 1886, when the appellant was less than one year old. Mati Dassi died in 1899 and the Sens appear to have then taken possession of the estate. Shortly after the death of Jogendra, Mati Dassi had purported to adopt Amulya Charan, the brother of Katyani, in further exercise of the authority conferred on her and in 1901 Amulya brought a suit against the Sens and Katyani claiming the estate; the suit was dismissed in both Courts on the ground that Mati Dassi's power of adoption had been exhausted with her adoption of Jogendra and the High Court further held, on construction of the will, that there was an intestacy as to the corpus of the estate, which vested in Jogendra as legal heir and on his death passed by succession to his widow Katyani. In this suit a Receiver had been appointed to the estate pending the disposal of the suit. The decision of the High Court which was dated 28 March 1905 is reported in Amulya Charan Seal V/s. Kali Das Sen, (1905) 32 Cal 861. Meantime, after the decision of the Subordinate Judge in Amulya's suit, Katyani brought Suit No. 11 of 1903 against the Sens, Amulya and the Receiver in Amulya's suit, claiming three-fourths of the estate and partition, which she later amended to a claim for the whole estate, after the decision of the High Court in Amulya's suit. The suit was defended by the Sens and on 21 December 1905, the Subordinate Judge decreed the suit in Katyani's favour, ordering and declaring that the plaintiff's title in the whole 16 annas' share of the immovable properties in dispute as specified in Sch.B (2) of the plaint be declared and she do recover possession therein.

(2.) The Sens appealed to the District Court and without authority, joined Kanai, the father of Katyani and Amulya, as respondent in the appeal; they also obtained leave to join a representative of the mortgagee. A petition of compromise was filed in the District Court on 9 January 1907, under which the Sens, with their mortgagee Kanai and Katyani agreed to divide the inheritance, Katyani taking, six annas, the Sens four annas, subject to the mortgagee's rights, and Kanai six annas. On 24 January 1907 a consent decree on the basis of the compromise was made by the District Court and partition was directed ; subsequently, on 15 September 1907, as directed by the Court, the Receiver made the partition and made over possession of the respective shares in terms of the compromise. The premises, 2 Deb Lane, compensation for a part, of which is the subject of the present appeal, was included in the four annas of which the Sens got possession.

(3.) Less than three months after the consent decree of the District Court in Suit No. 11 of 1903, the present appellant, in order to protect the reversionary interest, instituted on 18th April 1907 Suit No. 59 of 1907 against the parties to the compromise and the Receiver, for declaration that the compromise and the consent decree of the District Court dated 9th January 1907 were void and inoperative and that the reversioners were not bound by the partition proceedings taken in execution of the decree. The Subordinate Judge dismissed the suit, but on appeal the High Court set aside this decision by a judgment and decree dated 8th August 1910, and declared that the consent decree made on 9 January 1907 is void and inoperative as against the plaintiff-appellant and that she is in no way bound by the partition proceedings which have taken place in execution of that decree.