Devi v Roy

APPEAL (No. 17 of 1945), by special leave, from a decree of the High Court in its civil appellate jurisdiction (November 25, 1940) which confirmed a judgment and decree of the First Additional District Judge, Dacca (August 24, 1936).

The following facts are taken from the judgment of the Judicial Committee: The present suit was instituted in the Court of the First Subordinate Judge at Dacca on July 24, 1930, by the respondent Kumar Ramendra Narayan Roy (hereinafter referred to as the plaintiff) against the present appellant and others. In the plaint, as subsequently amended on April 15, 1931, the plaintiff sought (ka.) a declaration that he was Kumar Ramendra Narayan Roy, the second son of the late Rajah Rajendra Narayan Roy of Bhowal and (ka. 1), that his possession should be confirmed in respect of the one-third share of the properties described in the schedule, or, if from the evidence and under the circumstances plaintiff's possession thereof should not be established, then possession thereof should be given to him. He further asked for injunctions against obstruction to his possession. The present appellant filed a written statement denying, inter alia, the identity of the plaintiff with Kumar Ramendra Narayan Roy (hereinafter referred to as the second Kumar), and alleging that the suit was barred by limitation. Issues were adjusted, and those now relevant were: 2. Was the suit barred by limitation? 4. Was the second Kumar Ramendra Narayan Roy alive? 5. Was the present plaintiff the second Kumar Ramendra Narayan Roy of Bhowal? After a very long trial, lasting for 608 days, the First Additional District Judge delivered an elaborate and careful judgment in favour of the plaintiff on August 24, 1936, and by his order of the same date he ordered and decreed “that it be declared that the plaintiff is the Kumar Ramendra Narayan Roy, the second son of the late Rajah Rajendra Narayan Roy, Zemindar of Bhowal, and that he be put in possession of an undivided one-third share in the properties in suit — the share now in the enjoyment of the first defendant (the present appellant) — jointly with the other defendants' possession over the rest.” On an appeal by the present appellant, the appeal was heard by a Special Bench of the High Court, consisting of Costello, Biswas and Lodge JJ., and by decree dated November 25 (Lodge J. dissenting) it was ordered and decreed “in accordance with the opinion of the majority of the judges that the judgment and decree of the court below be and the same are hereby affirmed and this appeal dismissed.”

The following is a short account of the family history in the judgment of the trial judge:— Rajah Rajendra Narayan Roy, the Zemindar of Bhowal, one of the largest landed proprietors of East Bengal, died on April 26, 1901. The title was personal, but the family was old, and though not entitled to fame, regarded as the premier Hindu Zamindar family of Dacca. The family-seat was at Jaidebpur, a village about twenty miles from Dacca, and situate in the Pargana of Bbowal, a large and fairly compact estate, spreading over the districts of Dacca and Mymensingh. The Rajah had a residence at Dacca, but he ordinarily lived in his family home, and was undoubtedly a local magnate of the highest position and influence. The rent-roll of the estate was Rs.6,48,353 in 1931. It could not have been much less in the Rajah's time.

The Rajah died leaving him surviving, his widow, Rani Bilasmant, and three sons and three daughters. The sons were: Ranendra Narayan Roy, Ramendra Narayan Roy and Rabindra Narayan Roy. Those, mentioned in order of seniority, were known as Bara Kumar, Mejo Kumar and Chhoto Kumar. The daughters were Indumayee, Jyotirmoyee, and Tarinmoyee. Indumayee was the eldest child, Jyotirmoyee the second, then had come the sons, and then the youngest child, Tarinmoyee Debi.

The Rajah had executed before his death a deed of trust and a will, and, though the exact terms of those were not known, their result, as agreed, was that the estate, on his death, vested in the Rani, his widow, in trust for the three sons. She managed as trustee till her death, which took place on January 21, 1907. On that event the three sons became the owners at law, as they had been in equity; and there was no question that the second Kumar owned a third share in the estate, and would be owning it still, if he were alive, unless he had been prescribed against for the requisite period.

The three Kumars, after the death of their mother, as before, lived as an undivided Hindu family, joint in mess, property and worship. The eldest Kumar was married in 1901 to Sarajubala Debi, the second defendant in this suit. The second Kumar was married in 1902 to Bibhabati Devi, the present appellant, and the third Kumar in 1904 to Ananda Kumari Debi, the fourth defendant in this suit. The family lived at Jaidebpur, and the three sisters, all married, lived as members of the family. Another member of the family was the grandmother, Rani Satyabhama, who had survived her son Rajah Rajendra. The Rajah had a sister, Kripamoyee, who survived him, and who was practically a member of the family, though she lived in a separate block with her husband. The first Kumar died in 1910; the third Kumar died in 1913, and his widow, the fourth defendant, adopted in 1919 a son, Ram Narayan Roy, who was the third defendant. Indumayee and Kripamoyee died in 1920, and Satyabhama died in 1922.

A brief outline of the contentions of the parties was as follows:— there was no dispute that the second Kumar and the appellant, with a large party went from Jaidebpur to Darjeeling in April, 1909, arriving at the latter place on April 20, and took up their residence at a house called “Step Aside,” which had been rented for their stay; and, further, that at that time the second Kumar had gummatous ulcers on or about both elbows and on his legs, being the tertiary stage of syphilis, which he had contracted at some date subsequent to 1905. It was also agreed that he was taken for dead on May 8, 1909. The appellant maintained that the second Kumar died shortly before midnight and that the following morning his body was taken in a funeral procession and was cremated with the usual rites at the new sasan at Darjeeling. The plaintiff admitted that there was a funeral procession and cremation on the morning of May 9, but maintained that the body so cremated was not that of the second Kumar; his case was that the second Kumar was taken for dead about dusk, between seven and eight o'clock, in the evening of May 8, that arrangements were at once made...