Bibhabati Devi (Appellant) vs Ramendra Narayan Roy (Respondent)
Citation: (1947) 49 BOMLR 246
Author: Thankerton
Bench: Thankerton, D Parcq, M Nair
The Bhawal case was an extended Indian Court case about a person who claimed to be the Prince of Bhawal, who was presumed dead a decade earlier. The Court was called upon to decide on various provisions of law, on the question of limitation period and also presumption under Section 114 of the Indian Evidence Act, 1872.
It was alleged that the person died a decade earlier. However he re-appeared claiming to be the Prince of Bhawal and the rightful owner of one-third share of the Bhawal estate. The Court, after appreciating the evidence put on record, made important observations with regards to the bar of limitation and relevant facts.
The suit was instituted in the Court of the First Subordinate Judge at Dacca (Bangladesh) by the person who was claiming to be Kumar Ramendra Narayan Roy, wherein he sought declaration that he is Kumar Ramendra Narayan Roy, the second son of Rajah Rajendra Narayan Roy of Bhawal and further that his possession should be confirmed in respect of the one-third share of the properties of the Bhawal Estate. He further sought injunctions against obstruction to his possession. In the written statement, the Defendants who was the wife of Ramendra Narayan Roy, along with other parties being the wives of the other two brothers, denied, inter alia, the identity of the person as Ramendra Narayan Roy, further alleging that the suit was barred by limitation.
The main issues in the case were:
- Is the suit barred by limitation?
- Is the Second Kumar Rajendra Narayan Roy alive?
- Is the present Respondent (plaintiff in the original suit) the Second Kumar
The First Additional District Judge, after a long trial of 608 days, delivered an elaborate judgements in favour of the person who claimed to be the Second Kumar and under the same order it was ordered and decreed that it be declared that the plaintiff is Kumar Ramendra Narayan Roy and that he be put in possession of an undivided one third share in the properties of Bhawal Estate.
On an appeal made against the order before the Special Bench of the High Court, 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”.
Facts of the Case:
Rajah Rajendra Narayan Roy, the Zamindar of Bhawal, held one of the largest landed proprietors of East Bengal. The family was old and regarded as the premier Hindu Zamindar family of Dacca. The family-seat was at Jaidebpur a village near Dacca and situate in the Pargana of Bhawal, a large and fairly compact estate, spreading over the districts of Dacca and Mymensingh. The Rajah was undoubtedly a local magnate of the highest position and influence. The rent-roll of the estate was Rs. 6,48,853 in 1931.
The Rajah died 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. These, 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. However, the exact terms of these are not known, but, as agreed, the estate, upon his death, vested in the Rani, who was his widow, in trust for the three sons. She managed the estate as a trustee till her death which took place on January 21, 1907. After the Rajah’s death, 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.
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 Debi, 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, Earn Narayan Roy, who is the third defendant. Indumayee and Kripamoyee died in 1920, and Sityabhama died in 1922.
Contentions of the parties:
It was contended by the Defendants, in the original suit, (Appellants herein) that the Second Kumar and the appellant (wife), with a large party went from Jaidebpur to Darjeeling in April, 1909, arriving at the Darjeeling on the 20th April where they stayed at a house called “Step Aside,” on rent. It was further contended that at that time the Second Kumar had gummatous ulcers on both his elbows and his legs with being at the tertiary stage of syphilis.
It was also submitted that the Kumar died on May 8, 1909. The appellant stated 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 Respondent (Plaintiff in the original suit) 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. He further agreed that the arrangements were made for cremation, that the body was taken in funeral procession to the old sasan, and placed for cremation. However, at that point in time a violent storm of rain caused the party to take shelter and after the rain had stopped the body was no longer there. Thereafter another body was procured and taken to “Step Aside,” and was the subject of the procession and cremation the following morning.
The Respondent’s case was that while the party were 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 took him away, looked after him, and took him with them in all their wanderings. When he had recovered from an unconscious state of mind, he had lost his memory of who he was, where he came from and all about his past. He lived as a sanyasi, smeared himself with ashes and grew long hair and a beard. Eleven years later he recalled that he came from Dacca, but he could not remember who not he was. Thereafter around December, 1920 or January, 1921, he reached Dacca and took up a position on the Buckland Bund, a public walk on the margin of the river Buriganga, at Dacca, where the people promenade, morning and evening, for pleasure or health. He was found seated at the same spot, day and night, with a burning dhuni (ascetic’s fire) before him. It was then when people started recognising him or had become suspicious of him being the Second Kumar, which culminated in the removal of the ashes. He was recognised by his relatives and specially by his sister Jyotirmoyee, who accepted him as the Second Kumar and was one of his principal witnesses.
Summary of Court decision and observations
The First Additional District Judge ordered and decreed that it be declared that the person is the Kumar Ramendra Narayan Roy, the second son of the late Rajah Rajendra Narayan Roy, and further that he be put in possession of an undivided one-third share in the properties in suit which was in the enjoyment of the first defendant, the wife of the Second Kumar (the appellant herein) 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.
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 further 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 was 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 in the undivided one-third share of the Bhawal estate, which belonged to her husband, and she thereafter enjoyed it. The question arose whether her possession was adverse to her husband, who 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.
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.
