Rajbollobh Sen v. Omesh Chandro Rooj

Special Appeal from a decree passed by the Subordinate Judge of Beerbhoom, modifying that of the Moonsiff of Bonepore.

The material portion of the judgment referred to is as follows:—This appeal relates to five gardens. It is admitted on both sides that an 8-anna share of them belonged originally to one Dwarka, Nath Sen. It has been found by the lower Court—and it is not denied by the lower Court—that Pearimoni Dassi, the widow of the said Dwarka Nath Sen, made a gift of that share to the plaintiff with the consent of one Bisseswar Sen, the father of the appellants Nos. 1 to 4, and the only reversionary heir of Dwarka Nath Sen, at the time of that gift. Some time after that gift Bisseswar died, leaving four sons, appellants Nos. 1 to 4. Sub-sequently Pearimoni died in Pous 1279. The appellants contend that they are not bound by that gift or by the consent of Bisseswar war when they do not claim the properties through him. I am of opinion that the gift is valid and plaintiff's title is complete, when the gift was made by the widow Pearimoni Dassi with the consent of her husband's only reversionary heir, the father ??? the appellants Nos. 1 to 4—Callychund Dutt v. Moore, ???; Sreemutty Jadomoney Dabey v. Saroda Prosonno Mookerjee, 1 Boulnois, 120; Gunga Pershad Kur v. Sumbhoonath Burmun, 22 W.R, 393.

The defendants appealed.

Baboo Taruck Nath Sen, for the Appellants.

Baboo Nil Madhub Sen, for the Respondent.

The judgment of the High Court (1) was delivered by

Jackson, J.:— It appears to me that the judgment of the lower Appellate Court is right upon the point Raised.

I would hold the defendants to be concluded, not upon the ground that they are bound by the Act or consent of the father, through whom, they say, they do not claim, but upon this ground that the act of the widow sanctioned by the concurrence of the then next heir and ever since was in itself a valid grant.

This, so far as I know, is the rule usually acted upon by the Court in Bengal; and, although in a case reported in 22 W.R, ???—Gunga Pershad Kur v. Sumbhoonath Burmun, reference is made to some conflict of opinion upon the subject, I am not ??? there is such authority opposed to the view which I take ??? to oblige us to refer this question to the decision of a Full Bench. I would, therefore, dismiss this appeal with costs.