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Jwala Prasad Vs. Musammat Sukhdei and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported inAIR1920All67; 57Ind.Cas.59
AppellantJwala Prasad
RespondentMusammat Sukhdei and anr.
Excerpt:
.....of. - - 8,015. from the same judgment it appears that upon the dissolution of that partnership musammat genda purchased certain immoveable property under two sale-deeds executed in her favour in 1892 and 1907. the considerations for these sales amounted to something like rs. assuming that she was in possession in lieu of her maintenance, if she saved a portion of the profits which she could have spent on her maintenance, the savings would be her own personal property and would only go to her own legal representatives, unless she clearly indicated that she intended that this also should be deemed to be a part of the property of her husband of which she was in possession for her maintenance. 4. the parties to this appeal will pay and receive costs in proportion to failure and success..........three brothers, munna lal, laljimal, and shib charan. laljimal died first in 1877 leaving a widow musammat genda, who died in 1913. shib charan died next in 1889. after him died bindraban in 190 , and last of all munna lal died in 1914. the plaintiffs are musammat sukhdei, the widow of bindraban, and narain das his daughter's son. he made a will in their favour and by virtue of that will they are putting forward their claim. it appears that in 1884 a partition was effected of the family property under which a fourth share was taken by bindraban, another fourth by munna lal, a fourth by shib charan, and a fourth share was given to musammat genda, this apparently represented the share of laljimal. after a number of years one paran lal brought a suit claiming to be the adopted son of.....
Judgment:

1. The suit in this case embraces several reliefs claimed against various defendants with all of which we are not concerned in this appeal. The present appeal relates to three items which the plaintiffs claimed as heirs of one Bindraban. The plaint in the case is very inartistically drawn and it is not very easy to gather from it what was really claimed and what were the real grounds of the plaintiffs' suit.

2. Bindraban had three brothers, Munna Lal, Laljimal, and Shib Charan. Laljimal died first in 1877 leaving a widow Musammat Genda, who died in 1913. Shib Charan died next in 1889. After him died Bindraban in 190 , and last of all Munna Lal died in 1914. The plaintiffs are Musammat Sukhdei, the widow of Bindraban, and Narain Das his daughter's son. He made a Will in their favour and by virtue of that Will they are putting forward their claim. It appears that in 1884 a partition was effected of the family property under which a fourth share was taken by Bindraban, another fourth by Munna Lal, a fourth by Shib Charan, and a fourth share was given to Musammat Genda, This apparently represented the share of Laljimal. After a number of years one Paran Lal brought a suit claiming to be the adopted son of Laljimal. With the Result of that suit we are not concerned but it appears that a Receiver of the family property was appointed and in the hands of the Receiver were different items of property of which the three items now in disrule form part, Rs. 9,000 was taken by the Receiver from the possession of Musammat Genda. A further sum of Rs. 537, the proceeds of the sale of indigo, is the next item which is claimed by the plaintiffs and a third sum of Rs. 1,257.10.3, which is comprised of several items mentioned in lists A and B attached to the plaint, was also claimed. The plaintiffs stated that they were entitled to one-third of the Rs. 9,000, and apparently their claim was based on the ground that this amount formed part of the estate of Laljimal of which Musammat Genda was in possession. The Rs. 1,257.10.3 was claimed as forming part of the estate of Bindraban which be had left at his death, and Rs. 537 was claimed as being property which must be deemed to be a part of the estate of Laljimal. This part of the claim was resisted by Jwala Prasad, the daughter's son of Laljimal, in whose favour Musammat Genda made a Will in 1913 before her death. The Court below has decreed the claim in regard to this property. The present appeal has been preferred by Jwala Prasad and relates to the three items to which we have referred above. As to the item of Rs. 1,257.10.3 the learned Advocate for the appellant has addressed no argument to us and he concedes that the appeal cannot be supported in respect of this item, inasmuch as this property was found in the house of Bindraban and it has not been shown that Musammat Genda was in possession of it. There remain the two items of Rs. 9,000 and Rs. 537, in regard to both of which plaintiffs admitted that the sums belonged to Musammat Genda. In the Court below the Pleader for the plaintiffs stated that Musammat Genda was the owner of the sum of Rs. 9,000 in cash entered in list C, but he added that she had only a life estate in it so that upon her death the plaintiffs as representing Bindraban were entitled to a third share. The sum of Rs. 537, the proceeds of the sale of indigo, was also admitted to have belonged to Musammat Genda. As it was admitted that these two items belonged to Muasmmat Genda, she was competent to transfer them in any way she pleased and Jwala Prasad, who is the legatee under her Will and is also her legal heir, would be entitled to these two items, unless it could be shown that they formed part of the estate of Laljimal and that Musammat Genda had only a life-interest in them. As regards the indigo it cannot be said that it formed part of the -estate or could be regarded as accumulation of the income of the estate. Apparently Musammat Genda carried on some indigo business which did not exist in Laljimal's time, and if she made some profit out of that business and left Rs. 537, that money could not be claimed by the plaintiffs either as a part of the corpus of the estate or as an accretion to it. The claim, therefore, of the plaintiffs in respect of the item of Rs. 537 was wholly untenable and should have been dismissed.

3. As regards the item of Rs. 9,000 the Court below does not consider this sum to be a part of the corpus of the estate but regards it as an accumulations to the estate made by Musammat Genda and expresses the opinion that if it was an accumulation, it must be deemed to be a part of the estate and that she would only have a life-interest in it. This view of the learned Subordinate Judge does not commend itself to us. Unless it could be shown that Rs. 9,000 was a part of Laljimal's estate or represented that estate, it could not be deemed to be property to which the plain-, tiffs or representatives of Bindraban could lay claim as reversioners to the estate of Laljimal. If the Rs. 9,000 represented accumulations of the income derived from the corpus, the amount would prima facie be the property of Musammat Genda which she could dispose of by her Will, unless she intended to make it a part of the corpus of the estate. That intention must be gathered from the facts of the case. As we have said above, the first contention on behalf of the plaintiffs is that it has been proved that this sum of Rs. 9,000 represents the equivalent of the property which Musummat Genda got under the partition of 1884. On page 17 of the respondents' book we find a list of the property which was allowed to Musammat Genda at that partition. The total value of the moveable property consisting of cash, grain, book debts, etc., amounted to Rs. 6,634.12, of which Rs. 1,441.14.6 represented irrecoverable out standings. It is very difficult to say that this money, which was received so far back as 1884, still remained with Musammat Genda. On the contrary we find from a judgment to which our attention has been drawn by the learned Advocate for the appellant and which H dated the 29th of June, 1911, that after this partition a partnership business was entered into to which Musammat Genda as representing Laljimal's share of the estates contributed Rs. 8,015. From the same judgment it appears that upon the dissolution of that partnership Musammat Genda purchased certain immoveable property under two sale-deeds executed in her favour in 1892 and 1907. The considerations for these sales amounted to something like Rs. 10,000. It is very probable, therefore, that the money and the moveables which Musammat Genda obtained under the partition and which she invested in the partnership business were applied to the purchase of immoveable property and that the said immoveable property might represent the corpus of the estate. That property, however, does not form part of the subject-matter of the present suit, and we are not called upon to decide whether the plaintiffs would be entitled to claim a share cut of the property which Musammat Genda purchased in 1892 and 1907. The sum of Rs. 9,000, which was admittedly in the possession of Musammat Genda and which was received from her possession by the Receiver appointed in Puran Lal's case, cannot, therefore, be regarded as part of the corpus of Laljimal's estate. If it represented the accumulations of the money which came into the bands of Musammat Genda as profits derived from the property of which she was put into possession, that money would be her property unless it could be shown that she intended to make it a part of her husband's estate. On the record in this case there is not a particle of evidence to indicate such an intention. On the contrary the very fact that she has made a Will and by that Will has devised this property along with other property in favour of Jwala Prasad, is a clear indication of her intention to treat this money as her own separate money and not as part of her husband's estate. It is said that the possession of Musummat Genda was not similar to that of an ordinary Hindu widow who inherits her husband's estate and is in possession as his widow, and that she must be deemed to have been given a portion of the family property in lieu of her maintenance. No doubt she was not in possession in her capacity as widow of Laljimal who had inherited Laljimal's share of the family property. Assuming that she was in possession in lieu of her maintenance, if she saved a portion of the profits which she could have spent on her maintenance, the savings would be her own personal property and would only go to her own legal representatives, unless she clearly indicated that she intended that this also should be deemed to be a part of the property of her husband of which she was in possession for her maintenance. The mere fact that this money might have come out of the estate of her husband would not make it a part of that estate. We have already pointed out that after the 'death of her husband and after the partition in 1884 she was carrying on a partnership business. That partnership business may have yielded profits which she put by and which at the time of her death amounted to Rs. 9,000. If the money was saved by her out of what she received for her maintenance, this money could not be claimed by the plaintiffs. If, on the other hand, it came out of the estate, there is no presumption that it formed part of the' estate and that she could only have a life-interest in it. The lower Count was, therefore, wrong in holding that the plaintiffs were entitled to a third share of this sum of Rs. 9,000. It was contended by Dr. Sen on behalf of the plaintiffs that if Musammat Genda alienated the corpus of the estate, the plaintiffs are entitled to be reimbursed for the loss to the estate caused by such alienation. We are not aware of any proposition of law which would justify this contention. If Musammat Genda transferred a part of her husband's estate which by law she was not entitled to do, the plaintiffs would be at liberty, if so advised, to seek their remedy for the recovery of the estate, but they could not claim to be reimbursed for anything which might have been done by Musammat Genda in violation of the right which she possessed. Further-more, there is nothing to show that she has alienated any part of the corpus of the estate. We are, therefore, of opinion that the plaintiffs were not entitled to a decree in respect of Rs. 9,000 or Rs. 537 on account of the proceeds of the sale of indigo, and this appeal must succeed in respect of these two amounts. We accordingly vary the decree of the Court below and dismiss the claim in regard to a third share of Rs. 9,000 and for the sum of Rs. 537 representing the value of indigo, in addition to the items in regard to which the plaintiffs' claim has already been dismissed by the Court below.

4. The parties to this appeal will pay and receive costs in proportion to failure and success and the costs in this Court will include fees on the higher scale.


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