9911796707
TMI Blog1924 (3) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... set up by the plaintiffs. There was a plea that the claim was barred by time, and there were pleas that Ram Prasad, defendant No. 1, was the adopted son of deceased, that the claim was barred by the principle of res judicata and that it was also barred by estoppel. 3. In the pleadings or at the time when the issues were settled there was no suggestion that the deceased, Kallu Misra, had left any Will. On the other hand, the plaintiffs' vakil admitted that Shib Deo Misra, plaintiff No. 1, had other brothers alive and also stated that he would not amend his plaint. As matters stood on the pleadings, it was clear that in any event Shib Deo Misra, not being the sole surviving reversioner at the time of the death of Mt. Mohini, the entire claim could not be decreed. At a late stage in the case Ram Prasad, defendant No. 1, filed a number of papers among which there was a document purporting to be a will of Kallu Misra and bearing the date, 4th of October, 1887. Under it with the exception of a temple and rights connected therewith which were to go to Ram Prasad himself, the rest of the property was, on the death of Mt. Mohini, to go to Shib Deo Misra to the exclusion of his other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order of the Court the verification was ultimately made, but it was some months afterwards. 10. We are, however, of opinion that the plaint was not a void plaint merely because it did not contain the verification clause as required by the Code of Civil Procedure. In our opinion the omission to verify it was a mere irregularity which could be cured even at a later stage. Merely on the ground of such a defect, the plaint cannot be treated as altogether invalid. The subsequent verification was not an amendment of it. 11. This has been the view consistently followed in this Court, and we may refer to the cases of Rajit Ram v. Katesar Nath (1896) 18 All. 396 and Basdeo v. John Smidt (1899) 22 All. 55, which follow the case of Mohini Mbhun Das v. Bengsi Buddan Saha (1890) 17 Cal. 580 (P.C.). 12. The main point to consider in connection with the plea of limitation is the exact date on which Mt. Mohini died. There can be no doubt that the burden lies on the plaintiffs to prove conclusively that her death took place within 12 years of the suit. The judgment after discussing oral evidence dealt with the contention of the respondent that a certain Daily Death Register was not admis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no oral evidence on the record that this was the identical register which was kept at the police station, Etmadpur, in which circle village Brijnath, where Mt. Mohini died, is situated. All that is known is that this was brought in Court from the Record Room at head-quarters by a clerk named Abdul Ghani. 18. Mr. Dar has, therefore, contended that the Court can presume its genuineness under Section 81 of the Evidence Act only when it is shown that this is a document directed by any law, to be kept by any person and if such document is kept substantially in the form required by law and is produced from proper custody. His argument is that the Police Regulation No. 274, Sub-clause 5 enjoins the keeping of a register with separate pages assigned for each village and that, therefore, this register is not kept substantially in the form required by law, assuming that the law requires it to be kept. He has argued that it was, therefore, incumbent on the plaintiffs to lead evidence to prove the identity of this register and to show that it is this very register which has come from the Record Boom and which was the register kept at the police station. 19. The answer to this ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the 26th of November, 1897, for a declaration that Ram Prasad was not the adopted son of Kallu Misra and that the bond referred to above was altogether invalid and ineffectual. Ram Prasad filed a written statement on the 18th of December, 1897, in which he put forward his claim of a valid adoption. 24. The parties, however, entered into an agreement to refer all their disputes to arbitration and the Court referred rae matter to the arbitration of three arbitrators. Two of these three arbitrators are proved in this case to have been residents of the same mohalla, Kachhri Ghat, where Kallu Misra used to live and one of these two, namely Ganga Prasad, used to live in a house which was in front of Kallu Misra's house, the two houses being separated only by a road. Ganga Prasad's son, Mahabir Prasad, proves this. On the 24th of February, 1898 the arbitrators delivered their award in which they stated that they were empowered under the agreement to decide the dispute between the parties, without having regard for the issues and without taking any evidence. They expressed the opinion Ram Prasad is the son and the proper heir of Kallu Misra, deceased. 25. Then they pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he whole body of reversioners who would be entitled to the property after her death. If the adoption were to be upheld, the line of the reversioners would be altogether cut off, The suit brought by Mt. Mohini must, therefore, be treated as a representative suit and all persons having a common interest must be deemed to have been represented through her under Section 11, Explanation 6 of the Code of Civil Procedure. The defendants Nos. 7 and 8 are claiming through Ram Prasad, whereas the plaintiff No. 1 must be deemed to have been then represented by Mt. Mohini. The award and decree, therefore, operate as res judicata between them. 31. Defendants Nos. 2 and 3 and defendant No. 9, as will be shown, later claim title under Mt. Mohini and, therefore, the plea of res judicata cannot be successfully urged on their behalf. The question of adoption was next taken up and it was held that the adoption was proved. Then referring to the objection to the validity of the adoption on the ground of the adopted son and adoptive father belonging to different sub-castes the Judgment proceeded : - Nor can the adoption of a boy belonging to the same sub-caste be held to be invalid. In the case of Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from Mt. Mohini herself on the 17th of July 1898, and then took a sale-deed of the equity of redemption from her on the 11th of March, 1899. He, therefore, derived title from Mt. Mohini herself and the deeds in his favour were executed in her life-time. We are of opinion that a transferee from a Hindu widow who takes the property from her before the reversioner's right has accrued cannot successfully plead the bar of Section 41 of the Transfer of Property Act. 36. Assuming that he was a bona fide transferee for value who has taken the property after due enquiry and believing on the validity of the award, it cannot be held that he has taken it from an ostensible owner who was in possession with the consent express or implied of the reversioners. A Hindu widow enters into possession of her husband's estate by right and not with any express or implied consent of the reversioners. While she is alive the reversioners have no voice in the matter and have no right to intervene. She can continue in possession in spite of their protest. A transferee from such a person, who is in possession by her own right and as to whose possession no consent of the roversioner can be implied by ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
