1. The plaintiffs in the suits from which these appeals arise are Prasanna Kumar and Chandra Kumar, sons of the late Krishna Kumar Nag; they instituted five suits, two of them relating to land situated in Mouza Balina, three relating to lana situated in Mouza, Dubail. In the first Court they won in the two suits relating to Mouza Balina while they lost the other three. That decision gave rise to five appeals, three by the plaintiffs, and two by the defendants. In the lower Appellate Court, the defandants' appeals were dismissed, and the, plaintiffs appeals decreed almost in full.
2. There are now eight appeals before us. Three are preferred by the plaintiffs, and they are in respect of that part of their claim regarding the land in Mouza Dubail which has been dismissed. They are Appeals Nos. 1281, 1322, 1323. the other five are preferred by the defendants, they are Nos. 1244, 1245 and 1247 relating to Dubail and Nos. 1248 and 1249 relating to Balina. The plaintiffs, claim the entire sixteen annas interest in the land in Mouza Balina. They say that they held it as Khamar and enjoyed possession through baragadars until 1318 B.S. when the defendants began to interfere with their possession, and that the latter, after getting themselves wrongly described as raiyats in the Record of Rights dispossessed them in 1320 B.S.
3. The defendants say that the land in the suits belongs to the Baliati Babus, and that they, the defendants, have been holding them as raiyats since 1309 B.S.
4. In regard to the land in Dubail the plaintiffs claim an interest of 3-annas 13-gandas, and say that the plots described in the three suits were abandoned by the occupancy raiyats who held them, and that, as those raiyats had not the right of transfer they attempted to take possession but were resisted by the defendants.
5. In these suits also the defendants pleaded that the land was the Khamar lard of the Baliati Babus, and that they held the land as raiyats under them.
6. Many questions were raised in the Courts below, but it would be tedious to set them out, and I do not think it necessary. It is enough to deal with the points pressed in this Court.
7. For the defendants it is urged in all their appeals that the plaintiffs' share is less than what they claim. The argument, however, is applicable only to the lands in Dubail, because the Courts below are agreed in finding that the Balina lands lay in the exclusive Khamar of Krishna Kumar and of his sons after him.
8. It is conceded that in the 3-annas 13-gandas share of the taluk, Krishna Kumar, father of plaintiffs, had a share of ten-annas while his brother Ram Kumar had the remaining six-annas. That division was made by a deed of settlement in 1282. Ram Kumar died in 1283, leaving a widow Siva Sundari and minor son Kamini, and a daughter Mon Mohini, the child of an earlier wife. This daughter had two sons Nalini and Jogendra at the time of Ram Kumar's death, and later gave birth to three more sons Harendra, Surendra and Narendra. On the day of Ram Kumar's Sradh, Siva Sundari sold two-annas out of Ram Kumar's six-annas to Krishna Kunvar, and in 1286 she sold the remainder to him. On the first occasion she purported to be selling as guardian of the minor in order to provide for his maintenance. In the interval he died leaving his mother Siva Sundari as his heir and in the second document she said that she was selling the property for her own wants. Siva Sundari died in.
9. In 1306 Mon Mohini sold one-and-a half-aanas out of Ram Kumar's six-annas to the Baliati Babus; her two elder sons also signed the document, but Mon Mohini purported to sell the share as owner.
10. In 1314 Mon Mohini's five sons then being all of age sold the remaining four-and-a-half-annas to the plaintiffs in the names of their wives.
11. For the defendants it is urged that Siva Sundari having only a limited interest could not confer title on the plaintiffs, and that, therefore, the plaintiff's purchased interest must be limited to the four-and-a-half annas bought from Mon Mohini's five sons, the reversioners to Ram Kumar's estate on the widow's death.
12. The plaintiffs, on the other hand, say that the most that can be urged against Siva Sundari's sale is that the transactions were voidable, and that as they have not been avoided by the reversioners, the plaintiffs have secured a good title.
13. The learned Judge in the Court below does not appear to have come to a decision about the validity of the purchases from Siva Sundari: he regards such a finding as immaterial in view of the fact that the plaintiffs afterwards bought four-and-a-half-annas from the reversioners. In regard to the remaining one-and-a-half he holds that the Baliati Babus acquired a good title to the shares of Nalini and Jogendra who signed the deed of sale, by virtue of Section 43 of the Transfer of Property Act. The shares of the younger brothers, who were not of age when Mon Mohini purported to sell the share, did,not pass, he finds, to the Baliati Babus, and the latter did not take possession of them so to that extent the plaintiffs can plead adverse possession. The result is that he fixes the plaintiff's share at fifteen-annas eight gandas, that is, ten annas by inheritance, four-and-a-half annas by purchase from the reversioners and eighteen. gandas by adverse possession.
14. So far as the application of Section 43 of the Transfer of Property let is concerned, I think the learned Judge is clearly wrong: because the sons made no erroneous representation and did not profess to transfer: it was their mother, who claimed to be owner and professed to make the transfer and that she never was the owner of the property is not questioned.
15. It follows that there is no halting place between fourteen-and-a-half annas and sixteen annas: and it is necessary to decide the question whether Siva Sundari's transfers were operative. The documents purport to have been executed for legal necessity, or, at any rate, for good cause and they are not void but voidable, The persons who are entitled to seek to avoid them are the reversioners, but they have never done so, and it is not open to the defendants who do not claim through the reversioners to raise the question. I think, therefore, that the plaintiff's father acquired good title by the purchases from Siva Sundari and that in consequence their share must be fixed at sixteen annas.
16. The other question, affecting the Dubail lands only, is in regard to the nature of the relief to be given to the plaintiffs. For the defendants it is said that if the Baliati Babus were in possession, not in denial of the plaintiff's rights, and if the defendants took settlement from them in good faith, they the defendants, cannot be ejected, and the plaintiffs cannot get anything more than the right to recover rent proportionate to their share. The Baliati Babus, however, were not entitled to the entire interest in the land, and they had no right to grant settlement to the defendants with regard to the share of the plaintiffs. The latter are, therefore, entitled to recover khas possession of the land to the extent of their share jointly with the defendants, and in view of the fuming recorded above that share is not fifteen-annas eight gandas of three-annas thirteen gandas but the whole of three annas thirteen gandas.
17. The result is that the plaintiffs' appeals are decreed with costs, that is to say, their three Suits Nos. 2045, 2046 and 2049 are decreed with costs in all Courts and the defendant's appeals are dismissed with costs.
18. I agree.