FAKIR SHAI MONDAL Vs. CHANDMONI DASSYA

JUDGEMENT

(1.) THE plaintiff Chandmoni Dassya filed this suit to recover possession of a certain jote with occupancy right containing 24 bighas 3 kattas of land. She pleaded that she had purchased it on the 16 Falgun 1303 from one Kanu Pal by a registered kabala in the name of her minor son Modhu Sudan Pal who is the defendant No. 8 in this case. Subsequently, a suit (No. 92 of 1903) was brought by one Fakir Shah Mondal and others against three defendants of whom the aforesaid Mohdu Sudan Pal was one to recover possession of the same land. That suit was defended by all the three defendants including Modhu Sudan Pal but was decreed against them all. THE plaintiffs allegation in this case is that that decree was fraudulent as against her.

(2.) IN the Court Of first instance, the Munsif came to the conclusion that there was no evidence whatever to show that the previous decree was obtained by fraud, and also that the decree having been passed against the benamidar, Modhu Sudan Pal, it was binding upon the plaintiff, his mother. The learned Subordinate Judge has reversed that decision on the ground that the defendant No. 8 Modhu Sudan Pal was guilty of having practised fraud on his mother, the plaintiff in this case. We do not understand how the learned Subordinate Judge came to such a finding as there was no evidence on the record to support it. The former suit was contested by Modhu Sudan Pal and it was decreed after contest. He contested the suit as the owner of the property because it stood in his name, the kabala having been executed in his name. There are many cases which go to show that there is a presumption that a benamidar who is in the position of the plaintiff has instituted the suit with the full authority of the beneficial owner. See Gopi Nath Chobey V/s. Bhagwat Pershad 10 C. 697. The principle which was laid down in those cases was extended to cases where the suit was against the benamidar. See Abdul Gani V/s. A.M. Dunne 20 C. 418 the particular observation to be found at p. 422 and Kaniz Fatima V/s. Wali-ullah 30 A. 30. The same opinion has also been expressed in another case in this Court, Mohunt Das V/s. Nil Komul Dewan 4 C.W.N. 283. Applying that principle to the present case, we think it obvious that the plaintiff cannot now plead that that decree which was passed against her son, when he was in the position of a benamidar was a fraud upon her. That is the only point which arises in this appeal. The appeal must, therefore, be allowed and the decree of the learned Subordinate Judge set aside and that of the Munsif dismissing the plaintiffs suit with costs restored. The appellants must have their costs throughout.