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Shambo Chandra De and ors. Vs. Kartick Chunder Dey - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1927Cal11,97Ind.Cas.845
AppellantShambo Chandra De and ors.
RespondentKartick Chunder Dey
Cases ReferredDino Nath Mohunto v. Chundi Koch
Excerpt:
- .....shares. sadananda's 8 annnas share was inherited by his sons nimai and badan, each having a 4 annas share. badan's 4 annas share was inherited, on his death, by his daughters nityamoyee and kritarthamoyee, and on the death of the former her interest passed on to the latter. nimai's 4 annas share passed on his death, to his widow pearymoyee, and on the latter's death to haridas, son of kritarthamoyee. kritarthamoyee and. haridas leased the 8 annas patni right to defendant. haridas died leaving a widow, kirandasi, who is also dead, and kritarthamoyee died after her. the plaintiff's case is that on the death of kritarthamoyee he has inherited the said 8 annas interest.2. the munsif decreed the suit. the subordinate judge, on appeal, has given the plaintiff a decree for the 4 annas.....
Judgment:

Mukerji, J.

1. After giving pedigree his Lordship proceeded. The plaintiff sued for a declaration that he is entitled to receive; the rent of a patni to the extent of 8 annas from the defendant. The facts are not disputed. The patni mehal belonged to Rashbehary Chodhury, and on his death was inherited by his sons Sadananda and Bankubehary in equal shares. Sadananda's 8 annnas share was inherited by his sons Nimai and Badan, each having a 4 annas share. Badan's 4 annas share was inherited, on his death, by his daughters Nityamoyee and Kritarthamoyee, and on the death of the former her interest passed on to the latter. Nimai's 4 annas share passed on his death, to his widow Pearymoyee, and on the latter's death to Haridas, son of Kritarthamoyee. Kritarthamoyee and. Haridas leased the 8 annas patni right to defendant. Haridas died leaving a widow, Kirandasi, who is also dead, and Kritarthamoyee died after her. The plaintiff's case is that on the death of Kritarthamoyee he has inherited the said 8 annas interest.

2. The Munsif decreed the suit. The Subordinate Judge, on appeal, has given the plaintiff a decree for the 4 annas share which Kritarthamoyee has inherited from Badan and has disallowed the plaintiff's claim to the 4 annas share which Haridas had inherited from Nimai. The plaintiff has preferred this appeal which relates to the 4 annas share so disallowed. There is no cross-appeal on behalf of the defendant and we are no longer concerned with the other 4 annas share.

3. The Subordinate Judge has observed in his judgment that so far as Nimai's 4 annas share is concerned, Haridas got it absolutely and Haridas was the last male owner through whom the plaintiff should have claimed, but instead of that the plaintiff had rested his claim as heir of Badan and the claim, therefore, was misconceived. He has further observed that the plaintiff had not alleged that there was no person in the paternal family of Haridas who was competent to take as heir or that the plaintiff himself was such a person. On these grounds he dismissed the plaintiff's claim to the said 4 annas share. There is, however, very little substance in those grounds; for the necessary facts are all alleged in the plaint, while it is not alleged on behalf of the defendant that there was any person in Haridas' paternal family competent to take as his heir. To justify the dismissal of the claim a positive finding as to the existence of such a person would be necessary, provided, of course: that the plaintiff is competent to inherit at all under the the Bengal School of Hindu Law.

4. Now, what is the plaintiff's position in relation to Haridas? He is Haridas's maternal - great - great - grand father's daughter's sons's son. The right of the daughter's son's son to inherit under the Bengal School of Law has been discussed in two recent decisions of this Court. In the case of Badharamaii Chowdhuri v. Gopal Chandra Chakravarty [1920] 31 C.L.J. 81 all the more, important arguments that may be advanced pro and: con were noticed, but the question was not decided. In the case of Nepaldas Mnkherjee v. Probhas Chandra Mukherjee A.I.R. 1926 Cal. 460 it has been held that a daughter's son's son is not an heir. In the arguments before us the theory that the principle of spiritual benefit governs the law of inheritance in the Dayabhaga has been attacked and it has been urged that spiritual benefit is no test or at any rate is not the only test of heir ship in that School and that the cases of Gooroo Gobind Shaha v. Anund Lal Ghose 13 W.R. 49 and Digumbar Ray Chowdhry y. Moti Lal Bundopadhya [1883] 9 Cal. 563 should be re-considered; and an attempt has been made to re-open the question on lines similar to those that have been discouraged in the case of Dino Nath Mohunto v. Chundi Koch [1912] 16 C.L.J. 14, Kedar Nath Roy v. Amritalal Mookerjee [1912] 16 C.L.J. 342, Kailash Chandra Adhikary v. Karuna Kantha Chowdhury [1913] 18 C.W.N. 477 and Radharaman Chowdhuri v. Gopal Chandra Chakravarty [1920] 31 C.L.J. 81.

5. The arguments that are noticed in the last-mentioned case as being in support of the appellant's contention have been repeated before us. Reliance has also been placed on the test of Vishnupurana cited at page 79 of Mr. J.C. Ghose's Principles of Hindu Law, 2nd Edition. A further argument has also been advanced which, if I have appreciated it correctly, is that a daughter's son should be taken as including a daughter's son's son in view of the Judicial Committee in the case of Buddha Singh v. Laltu Singh [1915] 37 All. 604 in which their Lordships interpreting Mitakshara, Ch. II, Section 5, Verse. 4 held that the word 'putra' which when used in relation to the last owner signifies and includes sons, grandsons and great grandsons, thus including three degrees in direct line of descent, is not to be construed in a literal and restricted sense, when used in connexion with collateral relations such as brother, uncle or grand-uncle. The interpretation given by Mr. Raj Kumar Sarvadhikari to the terms Sakulya and Samanodaka has been pressed upon us and we have been asked to a dopt it and remove what is said to be a reproach on the Bengal School.

6. Assuming that the appellant has succeeded in establishing the right of a daughter's son's son to inherit, all his difficulties are not over. Even according to the view propounded by Mr. Raj Kumar Sarvadhikari, though every person is competent to present libation of water to every other the law of inheritance has given a limited signification to the term Samanodaka.'

It is not every parson,

says he,

who is competent to present 'the water' that must be considered an heir.

and

among the 'Samanodakas' those alone are entitled to the inheritance who are also 'Sakulyas' or allied by the family with the deceased. That Samanodaka alone is competent to inherit who belongs to the same kula or family of the deceased. The text of Dayabhaga, Ch. XI. Section 6.

7. Section 19 makes it perfectly clear that Jimutabahana while not confining the term kula to the agnatic family but including within its significance the male descendants of the daughters of the family has excluded the kinsmen ex parte materna from the connotation of the word. The plaintiff does not profess to be a member of the agnatic family of Haridas and is not a descendant of a daughter of Haridas' family but of the family of Harida's maternal grand-father He is, therefore, competent to inherit only if the Mitakshara succession of bandhus ex parte materna applies and not otherwise.

8. The appellant's cause has also been advocated from this point of view. Reliance bas been placed in this behalf upon the opinion of Jagannatha and reference has been made to a passage in the judgment of Mitra, J., in the case of Ahshay Chandra Bhattachariya v. Hari Das Goswami [1908] 35 Cal. 721 for the proposition that in all cases of absence of any express texts or precedents under the Dayabhaga Law the Courts should have recourse to the theory of propinquity and natural love and affinity, as adopted, by Vijnaneswara and the commentators of the more ancient and orthodox Schools of Hindu Law, and a strong appeal has been made to us Jo rise above provincialism and to declare that the Hindu Law is one and the same all over. For this extreme position however, there is no authority, and as pointed out by Banerjee, J., in Dino Nath Mohunto v. Chundi Koch [1912] 16 C.L.J. 14:

The scheme of the Dayabhage is radically distinct from and to some extant incompatible with the scheme of the Mitakshara, and the one cannot wall be made to supplement the other so far as the law of inheritance is concerned and although the Dayabhaga may be silent so far as express enumeration goes, it is not silent so far as the indication of the general principle according to which hairship is to be determined is concerned.

9. The plaintiff, in my opinion, is no heir to Haridas, and his claim to the 4 annas share has been rightly dismissed. The appeal fails and is dismissed with costs.

Greaves, J.

10. I agree.


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