- (1.)THIS is an appeal by special leave from a decree of the High Court of Judicature at Fort William in Bengal, dated November 25, 1940, dismissing an appeal against a decree of the First Additional District Judge, Dacca, dated August 24, 1936.
(2.)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 1) a declaration that he is 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 are, 2.Is the suit barred by limitation ? 4.Is the Second Kumar Ramendra Narayan Roy alive ? 5.Is 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 21, 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 posscssion 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. "
It will be convenient to restate the short account of the family history in the judgment of the trial Judge:-Rajah Rajendra Narayan Roy, the Zamindar of Bhowal, one of the largest landed proprietors of East Bengal, died on April 26, 190]. 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 is at Jaidebpur, a village about 20 miles from Dacca, and situate in the Pargana of Bhowal, 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. 6,48,853 in 1931. It could not have been much less in the Rajah's time.

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.

(3.)THE Rajah had executed before his death a deed of trust and a will, and, though the exact terms of these are not known, their result, as agreed, was that the estate, upon 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. 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 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.

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