KALIPADA DE Vs. DWIJAPADA DAS

JUDGEMENT

(1.) The question in this appeal is as to the right of inheritance to one Nistarni who is entitled under her father's will to the property in suit. She died childless and intestate in November 1909. There were various claims to her estate, but this appeal is concerned only with the claim of respondent 1, Dwijapada, on the one hand, and two brothers, Gokal and Banwari (through whom the appellants claim) on the other.

(2.) On the death of Nistarini, applications were made by both parties to the District Court for the grant of letters of administration to her estate under Act 5 of 1881. The proceedings being contentions were tried as a suit by the Subordinate Judge to whom the case was transferred under the provisions of Bengal Act 12 of 1887. The principal, if not the only, question for his decision was whether Dwijapada was the nearest heir of Nistarini, this depending upon a pure question of fact, namely, whether Dwijapada's mother was the sister of Nistarini's husband. This issue was formally raised and determined by the Subordinate Judge in favour of respondent 1 Dwijapada, and on 20 August 1912 the Subordinate Judge ordered that letters of administration to Nistarini's estate should issue to him.

(3.) There was an appeal to the High Court and the decision of the Subordinate Judge was affirmed Letters of administration were granted to respondent 1 and he obtained possession of the property. No appeal was madeto His Majesty in Council, as it could hardly be doubted that upon the concurrent finding of fact of the two Indian Courts such an appeal would have been hopeless. The other claimants, Gokal and Banwari, apparently acquiesced in the finality of this adjudication and took no further steps in the matter. After their deaths their heirs seem to have sold their alleged shares in the property to the present appellants, who, in November 1921, on the eve of limitation, instituted the somewhat speculative suit out of which this appeal has arisen. They prayed for a declaration that Dwijapada, respondent 1, was not the sister's son of Nistarini's husband, and the establishment of their title through Gokal and Banwari, with possession and mesne profits.