SATYENDRA NATH KHAN Vs. PANCHANON CHATTERJEE

JUDGEMENT

(1.) In our opinion this is a clear ease. The plaintiff's case is that one Shib Chandra died leaving four sons, one of whom was Kedar and another Ram Nrisingha. Kedar had a daughter Rakhal Dasi who had a son, the plaintiff. Rakhal Dasi is dead, and the plaintiff such to recover his share of the inheritance. He is resisted by defendants 1 to 3 who assert that on the death of Earn his four sons mortgaged the property in suit to the mother of defendants 1 to 3, The finding of both Oourt3 is adverse to the defendants.

(2.) On appeal before us the learned advocate on behalf of the defendants-appellants has taken two points, firstly that the plaintiff has no title inasmuch as he based his title upon a decree of 1909, in a suit brought by Rakhal Dasi against the four sons of Earn, and in that suit two of the sons of Earn were minors and were not represented by a guardian-ad-litem appointed by the Court and therefore the decree was not binding upon them. The second point taken was that that being so the suit was against the minor defendants and being a nullity, symbolical possession given through the Court to Rakhal Dasi on 25 January 1909 was not to be treated as possession against the minor defendants and, therefore the suit was barrel by limitation. It was also claimed in the lower appellate Court that the defendants had acquired, a title by adverse possession, but there was a clear finding of fact adverse to them in the lower appellate Court, and before us that claim has not and could not have, been pressed. <JGN>Page</JGN> 2 of 2

(3.) As regards the first contention on behalf of the appellants in our opinion the appeal is concluded against them by the decision of the Privy Council in Mt. Bibi Walian V/s. Banke Behari Pershad Singh [1903] 30 Cal. 1021. It appears that at the date when the proceedings in 1896 were commenced the two elder sons of Ram Jogendra and Girindra, were major, the other two sons minors, and in the plaint the two minor sons are set out by name and it is added that on their behalf Girindra appears as their certificated guardian. That plaint was admitted by the Court. A petition on behalf of Jogendra, the eldest brother, and others was presented for leave to file a written statement, but no written statement was filed, and eventually a preliminary decree was passed on 9 February 1897, and the final decree on 10 March 1897 declaring Rakhal Dasi to be entitled to one-third share in the immovable properties in suit. In that decree as in the plaint the four brothers are named, the decree against the two minors being against them as represented by Girindra their certificated guardian.