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1946 Supreme(SC) 32
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD THANKERTON, LORD DU PARCO AND SIR MADHAVAN NAIR.
SRIMATI BIBHABATI DEVI - Appellant
Versus
KUMAR RAMENDRA NARAYAN ROY - Respondents
On Appeal from the High Court at Calcutta.
Decided On : July, 30, 1946.
Solicitors for appellant :Sanderson, Lee & Co. Solicitors for first respondent: T. L. Wilson & Co.
The court established that concurrent findings of fact are binding unless there is a miscarriage of justice or legal error. It also ruled that possession of property by a spouse under the mistaken belief that the other spouse is dead does not constitute adverse possession.
Headnote:(A) Evidence Act, 1872 - Sections 3, 59, 60 and 114 - Limitation Act, 1908 - Article 144 and Section 28 - Concurrent findings of fact - Practice of the Board to decline review of evidence where two courts have concurred on a pure question of fact, unless special circumstances exist - Special circumstances include: (i) miscarriage of justice, meaning a departure from judicial procedure so severe it ceases to be judicial; (ii) violation of a principle of law or procedure such that the finding cannot stand if the error is corrected; or (iii) a finding based on no evidence. (Paras 137-140)
(B) Evidence Act, 1872 - Section 114 - Admissibility of evidence - A request for assistance in carrying a body for cremation may be considered a relevant fact based on a presumption of the common course of natural events and human conduct. (Para 141)
(C) Limitation Act, 1908 - Adverse possession - Possession of an estate by a widow under the mistaken belief that her husband is dead is not adverse to the husband. (Para 143)
Facts of the case:
The respondent sought a declaration of identity as the second son of a deceased landowner and confirmation of possession of a one-third share of an estate. The appellant, the widow, denied the identity and claimed the suit was barred by limitation, asserting that the respondent had died years prior and she had enjoyed the estate as a widow for over twelve years. Two lower courts had concurrently found in favor of the respondent's identity.
Findings of Court:
The court held that there were no special circumstances to justify departing from the practice of upholding concurrent findings of fact. The evidence regarding the timing of the presumed death was admissible under the law of evidence. Furthermore, the widow's possession was not adverse because it was based on the mistake that the husband was deceased.
Issues: Whether the concurrent findings of fact by the lower courts should be disturbed; whether the evidence of witnesses regarding the request for help to carry a body was admissible; and whether the widow's possession of the estate was adverse to the husband.
Ratio Decidendi: The Board will not review concurrent findings of fact unless there is a clear miscarriage of justice or a fundamental legal error. Possession cannot be adverse to a person whom the possessor believes to be dead.
Result: Appeal dismissed.
Legal Category Hierarchy
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practice and procedure
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appellate review
- concurrent findings of fact
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appellate review
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evidence
- admissibility
- valuation of evidence
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property law
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limitation
- adverse possession
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limitation
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family law
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hindu law
- widow's estate
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hindu law
Judgement
Appeal (No. 17 of 1945), by special leave, from a decree of the High Court in its civil appellate jurisdiction (November 25, 1940) which confirmed a judgment and decree of the First Additional District Judge, Dacca (August 24, 1936).
The following facts are taken from the judgment of the Judicial Committee 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.) a declaration that he was Kumar Ramendra Narayan Roy, the second son of the late Rajah Rajendra Narayan Roy of Bhowal and (ka. x), 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 plaintiffs 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 were 2. Was the suit barred by limitation ? 4. Was the second Kumar Ramendra Narayan Roy alive? 5. Was 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 24, 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 ;n 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, consisting of Costello,
Law Rep. 73 Ind. App. 246 ( 1945- 1946) Bibhabati Devi V. Kumar Ramendra Narayan Roy
134
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.”
The following is a short account of the family history in the judgment of the trial judge —Rajah Rajendra Narayan Roy, the Zemindar of Bhowal, one of the largest landed proprietors of East Bengal, died on April 26, 1901. 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 was at Jaidebpur, a village about twenty 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 Raj ah had a residence at Dacca, but he ordinarily lived in his family homeland was undoubtedly a local magnate of the highest position and influence. The rent-roll of the estate was Rs.6,48,353 in 1931. It could not have been much less in the Rajahs time.
The Rajah died leaving him surviving, his widow, Rani Bilasmani, and three sons and three daughters. The sons were Ramendra Narayan Roy, Ramendra Narayan Roy and Rabindra Narayan Roy. Those, 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 hi
