|CITATION||(1947) 49 BOMLR 246|
|COURT||High Court of Bombay|
|JUDGES/CORAM||Thankerton, D. Park and M. Nair|
|DATE OF JUDGEMENT||30.07.1946|
In this peculiar case, the respondent was alleged to have died a few years ago. The Court after appreciating the evidence made important observations with regard to bar of limitation and relevant facts.
The facts of the case are as follows: The suit was filed in the Court of the First Subordinate Judge, by the respondent Kumar Ramendra Narayan Roy against the present appellant. In the plaint, he sought a declaration that he is the second son of the late Rajah Rajendra Narayan Roy of Bhowal and that his possession in respect of the 1/3rd share of the properties be confirmed. He further asked for injunctions against obstruction to his possession. The present appellant in the written statement, denied the identity of the respondent (plaintiff in the original suit) with Kumar Ramendra Narayan Roy (Second Kumar), as well as alleged that the suit was barred by limitation.
Family history: Rajah Rajendra Narayan Roy, the Zamindar of Bhowal, was one of the largest landed proprietors of East Bengal. He passed away leaving him surviving, his widow, Rani Bilasmani, and three sons and three daughters. The sons were Ranendra Narayan Roy, Ramendra Narayan Roy and Rabindra Narayan Roy. 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 upon his death, the estate 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. Upon that event the three sons became the owners at law, as they had been in equity; and there is no question that the Second Kumar owned a third share in the estate, and would be owning it still, if he be alive, unless he has been prescribed against for the requisite period.
The main issues in the case were:
- Is the suit barred by limitation?
- Is the Second Kumar Ramendra Narayan Roy alive?
- Is the present plaintiff the Second Kumar Ramendra Narayan Roy of Bhowal?
Contentions of the parties
The Second Kumar was taken for dead on May 8, 1909. The appellant maintains 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 admits that there was a funeral procession and cremation on the morning of May 9, but maintains that the body so cremated was not that of the Second Kumar; his case is 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 for cremation, that the body was taken in funeral procession to the old sasan, and placed in position for cremation, when a violent storm of rain caused the party to take shelter, and that, on their return after the rain had abated, the body was no longer there; that thereafter another body was procured and was the subject of the procession and cremation the following morning.
Shortly thereafter, the appellant began to enjoy her widow’s estate in the undivided one-third share of the Bhowal estate, which the Second Kumar had owned, and she recovered the proceeds, amounting to Rs. 30,000, of a life policy taken out by the Second Kumar, the necessary certificates of his death having been provided. Soon after her the Court of Wards took charge of the appellant’s share of the Bhowal estate, and an attempt by her to obtain its release having been unsuccessful, her share remained in charge of the Court of Wards up to the time of the decree in the present suit.
On the other hand, the plaintiff’s case is that while the funeral party was sheltering from the storm, he was found to be still alive by four sanyasis (ascetics), who were nearby and had heard certain sounds from the sasan, and who released him and took him away, looked after him, and took him with them in their wanderings; that when he had recovered from an unconscious state, he had lost all memory of who he was, where he came from and of past events. He lived and garbed himself as a sanyasi would. Some eleven years later he recalled that he came from Dacca, but not who or what he was; that in December 1920, or January 1921, he reached Dacca, and took up a position on the Buckland Bund; he was recognized by certain people and relatives.
Summary of court decision and judgment
The First Additional District Judge 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. The appeal was dismissed, and the order of the lower court was upheld. In the present appeal, the Court first appreciated the evidence given by the witnesses and observed that the appellant failed to establish her case and the witnesses to the death were not enough. The Court observed that the statement of the witness was a fact within the meaning of Sections 3 and 59 of the Indian Evidence Act of 1872 and that it is proved by the direct evidence of other witnesses who heard it, within the meaning of Section 60; but it was not a relevant fact unless the learned Judge was entitled to make it a relevant fact by a presumption under the terms of Section 114.
The Court observed that on the supposed death of the Second Kumar the appellant entered on her widow’s estate in the undivided one-third share of the Bhowal estate, which belonged to her husband, and she thereafter enjoyed it. the question arose whether her possession was adverse to her husband, he is in fact alive. Possession must be adverse to a living person, and, as she was possessing under a mistake as to his death, it is difficult to see how she can claim that by her possession she was asserting a right adverse to one whom she regarded as dead. The Court dismissed the appeals and upheld the decision of the High Court.
Section 114 of the Evidence Act lays down that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
This Section helps the Court in deciding, on whom the burden of proof, in certain situations is. This section has to be used cautiously and not as a straitjacket formula.
The Court in this case rightly held that the fact didn’t become relevant unless the judge was entitled to make it a relevant fact by a presumption u/s 114. Further, discussing the bar of limitation the Court held, “The Hindu widow, as often pointed out, is not a life renter, but has a widow’s estate-that is to say, a widow’s estate in her deceased husband’s estate. If possessing a widow she possesses adversely to anyone as to certain parcels, she does not acquire the parcels as stridhan, but she makes them good to her husband’s estate.”