C.N. Laik, J.
1. This second appeal on behalf of defendant No. 1 arises out of a suit for declaration of plaintiff's title to 1/5th share in the lands in Khata No. 95 in village Raherdih in the District of Purulia after ejecting the principal defendants Nos. 1 to 5 and for joint possession with pro forma defendants Nos. 6 to 9 having the remaining 4/5th share. The plaintiff also claimed mesne profits.
2. The following admitted genealogical table would be helpful in understanding the case of the parties:
(See Genealogical table on next page.)
3. It will appear from the above that Bhu-baneswar is the plaintiff respondent No. 1 and his two brothers Sashi and Sarbananda are pro forma defendants respondents Nos. 6 and 7. Kali Pada and Mahananda are the pro forma defendants respondents Nos. 8 and 9. Defendant No. 1 Bijoy. who was originally the appellant in this Court was the uterine brother of Bimala, widow of Bhagwat. Bijoy had two other brothers, name-ly, Protap and Nandalal. Defendants Respondents Nos. 4 and 5 are the son and the widow respectively of the said Nandalal.
4. The only question which calls for decision in this appeal is as to who would succeed to the disputed properties on Bimala's death.
| | | | |
Rameswar Dataram Sebaram Gandharba Lalit
| | | |
Bhagwat Bipati Bihari Siban
--Bimala | (died in 1953) |
(died in Magh 1357 B.S.) | Bisheshar
| | | |
Yagneshwar Sristidhar Kalipada Mahananda
| (issueless) (Pro forma (Pro forma
| D. 8 Pro R. 8) D. 9 Pro R. 9)
| | |
Bhubaneswar Shahi Sarbananda
(Plff. Respdt. No. 1) (Pro forma D. 6 (Pro forma D. 7
Pro R. 6 Pro R. 7)
5. The plaintiff respondent's case inter alia was simple, viz., that the parties migrated from the border of Hazaribagh and Gaya Districts in the State of Bihar and were and are all along governed by Mitakshara School of Hindu Law and the disputed properties were the absolute properties of Eimala. After Bimala's death, the disputed properties devolved upon the plaintiff in one-fifth share and on pro forma defendants Nos. 6 to 9 in the remaining 4/5th share, being her nearest reversioners. After Bimala's death, the plaintiff and pro forma defendants Nos. 6 to 9 wanted to take possession, but they were resisted by defendants Nos. 1 and 2 which led to a proceeding under section 144 of the Code of Criminal Procedure and the said proceeding having been decided against the plaintiff, he was compelled to institute the present suit.
6. The defence of defendant No. 1 appellant was that the parties were governed by Daya-bhaga School of Hindu Law and not the Mitakshara School. It was also the specific case of the appellant that the disputed properties were stridhan properties of Bimala and not part of her husband's estate. The further defence was that the plaintiff was not entitled to raise the question whether the disputed properties were part of the estate of Bimala's husband or her Stridhan property, because the said question was decided in another suit, viz., Title Suit No. 59 of 1944. Moreover, in the compromise decree passed in Suit No. 211 of 1921 Bimala agreed that she would possess the disputed properties during her life time only and after her death it would go to defendant No. 1 appellant. The further case of defendant No. 1 appellant was that though Bimala had executed a will in respect of the disputed property in favour of Bhudeb (defendant No. 2) the said will was not acted upon. In the result, the plaintiff and/ or the pro forma defendants were not entitled to succeed to the properties on Bimala's death.
(6a) Defendants Nos. 2 and 5 filed a written statement and accepted the written statement of defendant No. 1 as their own. It was also the case of the said defendants that the disputed properties were the Stridhan properties of Bimala and she was the absolute owner thereof. It was also stated that by the said compromise decree in the Suit of 1921, it was agreed that after Bimala's death her three brothers would get the disputed properties and in pursuance of the said agreement, the will in favour of defendant No. 2 was not acted upon.
7. The learned Munsiff held that the disputed properties did not form part of the estate of Bhagwat (Bimala's husband) and that the same was the Stridhan property of Bimala. It was also held that the parties are governed by Mitakshara School of Hindu Law. The learned Mun-siff, further held that the said compromise decree was not arrived at by Bimala out of her free volition. The same was also rejected on two more grounds, namely, that the compromise decree (Ext. D) could not be connected with the disputed properties and that the same being an unregistered one, could not be accepted in the evidence.
(7a) In conclusion, the learned Munsiff declared the plaintiff's title in 1/5th share in the disputed properties and further held that the plaintiff would be entitled to joint possession with the contesting defendants, viz., defendants Nos. 1 to 5 (and not pro forma defendants Nos. 6 to 9 as prayed for by the plaintiff). The learned Munsiff also found that the pro forma defendants were not in possession of the suit property. The learned Munsiff directed that the amount of mesne profits would be determined in a separate proceeding.
8. Against the said decree, the defendant No. 1 alone preferred an appeal and the learned Subordinate Judge was also pleased to dismiss the same. Though the learned Judge purported to agree with the learned Munsiff and found that the plaintiff would be entitled to 1/5th share, but he further found that the pro forma defendants Nos. 6 to 9 would be entitled to the remaining 4/5th share and not the principal defendants 1 to 5 as was decreed by the trial Court.
9. The learned Subordinate Judge agreed with the findings of the learned Munsiff that the parties were governed by Mitakshara School and that the disputed properties were Bimala's Stridhan property. Moreover, according to the learned Judge, as the said question was already decided between the parties in Title Suit No. 59 of 1944, the said point was obviously covered by the principles of res judicata. The learned Subordinate Judge also repelled the contention of the defendant No. 1 appellant to the effect that assuming that the properties were Stridhan, but as Bimala's marriage was in Sulka form, the appellant being the uterine brother, was her nearest heir and entitled to succeed. The reasoning of the learned Subordinate Judge was, that no evidence was adduced in rebutting the presumption that the marriage of Bimala was in approved form and not in Sulka form and no such case was even made in the trial court and in consequence the suit property must be held to be the Stridhan of Bimala, of a kind, other than the Sulka form, which on Bimala's death, would go to her husband's heirs in preference to her father's heirs. The compromise decree, Ext. D, was also held to be collusive and fraudulent and in the result the appeal was dismissed, as hereinbefore stated.
10. The defendant No. 1 alone preferred this Second Appeal to this Court and during the pendency of the appeal he died and the defendants Nos. 2 to 5 were substituted in his place.
11. Mr. Dasgupta appearing in support of the appeal, contended that the plaintiff's title according to his own case was based on the ground that Bimala got the disputed properties as her husband's estate and not as Stridhan property and the finding of both the Courts below as to the parties being governed by Mitakshara School was an invalid finding, being based on oral testimony only and that customs and rituals, such as funeral, marriage and other tests, etc., were not applied by both the Courts below, to come to the said finding. It was also contended that in order to arrive at the presumption from the fact of migration that the parties were governed by Mitakshara School of Hindu Law, it was necessary that the said fact was to be proved after introduction of Dayabbaga School in Bengal. Lastly, it was contended that assuming Benares Sub-School in Mitakshara School -- was applicable to the parties, the onus of proof that the marriage of Bimala was in approved form, i. e., other than in Sulka form, was on the plaintiff and not on defendant No. 1 and the same was misconceived according to Mr. Dasgupta. Everything failing, the compromise decree in Suit of 1921 (Ext. D) must be held to be res judicata between the parties and should not have been thrown out on the ground that the said decree being unregistered, was inadmissible in evidence as the amendment of the Registration Act was effected in the year 1929, i. e., after the said compromise decree and was therefore not inadmissible,
12. Mr. Gangiily in reply answered that both the Courts below went into the evidence carefully and concurred in the findings of fact, viz., that the parties are governed by Mitakshara School of Hindu Law and that the properties of Bimala wore Stridhan. Moreover, the presumption as to the application o Mitakshara School arising out of migration would attach to the parties. It was also contended that Ext. D did not relate to the properties in dispute and moreover the same was held to be collusive and fraudulent which is a finding of fact and should not be upset in Second Appeal.
13. The first point for consideration is whether the parties are governed by Mitakshara or Dayabhaga School.
14. It is the admitted case of both the parties that the family migrated from a place near Gaya, in the State of Bihar where Mitakshara Law prevailed. In my opinion, the law is that the family carries with it, its personal law, i. e., the laws and customs as to succession, etc., prevailing in the place from which it came and the onus is on the party alleging interruption or cessation. Beginning from the judgment of Mr. Baron Par-ke in Rutcheputty Dull Jha v. Rajunder Na-rain, 2 Moo Ind App 132 at p. 168 (PC) right upto the decision by Lord Dunedin in Balwant Rao v. Baji Rao, 47 Ind App 213 : (AIR 1921 PC 59), the same view is expressed. The principle is also clearly laid down by Lord Robertson in Parbati Kumari v. Jagdish Chunder, 29 Ind App 82 at p. 96 (PC). The two decisions reported in Rani Pudmavati v. Baboo Doolar Singh, 4 Moo Ind App 259 (PC) and Rani Sreemutty Dibeah v. Rani Koond Luta, 4 Moo Ind App 292 (PC) also support the said proposition. Sir James Colville in his inimitable language said the same thing in Soorendranath v. Mst. Hiramani, 12 Moo Ind App 81 at p. 92 (PC). I am not saying that the said presumption cannot be rebutted by showing that the family has adopted the law and usages of the place to which it has migrated. But in the instant case there is evidence on the record which has been believed by both the Courts be-low, which supports the presumption that the family did not renounce the Mitakshara Law nor did adopt the customs and usages of Dayabhag Law. On the evidence, the ceremonies performed in the family at marriage, births and Sradhs showed that the family continued to be governed by the Mitakshara Law even after its migration. I cannot accept Mr. Dasgupta's argument that oral testimony alone was not sufficient, when the same has been given and is believed by both the Courts below and particularly in the absence of documentary evidence. I may also mention that there is also documentary evidence (Ext. 1) against the appellant's contention which is also considered by the Court of Appeal below. I am unable to accept the argument of the learned Advocate for the appellants that presumption should have been pleaded.
15. Mr. Dasgupta next contended on this branch of the case that it was also necessary for the plaintiff to prove that the family immigrated to the place after the establishment of Dayabhag system of law. It is no doubt true that the plaintiff has not proved the same in the present case but in my view, if and when the immigration is proved and it is also proved that the family followed the customs of the Mitakshara School, it is not necessary to prove that the fact of immigration took place after the establishment of Dayabhag School. Mr. Dasgupta drew my attention to a Bench decision of this Court in the case of Pitambar Chandra v. Nisikanta, 31 Cal LJ 52 : (AIR 1920 Cal 335) in support of his above contention, but in my view the said case is distinguishable from the facts in the present case, viz., that it was found in the reported decision that there was no evidence of immigration from Bihar, i. e., where Mitakshara Law prevailed and no satisfactory evidence of adherence to Mitakshara law after immigration, but in the instant case the findings are just the reverse. Moreover, the said case in 31 Cal LJ 52 : (AIR 1920 Cal 335) was explained in a subsequent Bench decision of this Court in Eamesh Chandra v. Md. Elahi Bux : AIR1924Cal383 which held that Sri Ashutosh in delivering the judgment in 31 Cal LJ 52 : (AIR 1920 Cal 335) did not lay down the proposition that Hindu family, residing in Bengal, to show that it is governed by Mitakshara School of law, must prove immigration in all cases since the establishment of Dayabhag system in Bengal. The said view is also supported by Mulla's Hindu Law, Article 14, (12th Edn.) though it is unfortunate that the case reported in 31 Cal LJ 52 : (AIR 1920 Cal 335) was not noticed in the said treatise of Hindu Law. This is also the view expressed in Mayne's Hindu Law, nth Edn., footnote of paragraph 56 and the decision in : AIR1924Cal383 was cited and not the case in 31 Cal LJ 52 : (AIR 1920 Cal 335) which was only noticed in the said treatise, for the purpose of showing that Sir Ashutosh expressed two different views as to the date of foundation of Dayabhag School of Hindu Law in Bengal, viz., nth Century in Rajani Nath v. Nitai Chandra, ILR 48 Cal 643 : (AIR 1921 Cal 820) (FB) and 14th Century in 31 Cal LJ 52 : (AIR 1920 Cal 335). I cannot also accept Mr. Dasgupta's argument that the principle enunciated in another Bench decision, viz., Banamali Patra v. Arjun Sen : AIR1932Cal730 is also an authority for the said proposition of law, though the decision of 31 Cal LJ 52 : (AIR 1920 Cal 335) is also noticed there. Therefore in the instant case, it is not necessary to prove the fact of immigration after the establishment of Dayabhag School in Bengal.
16. Coming now to the question whether the disputed property was Bimala's Stridhan property Mr. Dasgupta developed his argument by saying that though there might be pleadings as to the parties being governed by Mitakshara, that does not necessarily imply that the disputed properties were Bimala's Stridhan property. I must say that the plaint was drafted clumsily but nonetheless it was stated therein that the disputed properties belonged to Bimala absolutely, though it was not stated as her Stridhan properties. But it is all the more curious that the defendant No. 1 appellant categorically admitted in paragraphs 8, 9, 10 and 19 of his written statement that the disputed properties were the personal and 'self-acquired' properties of Bimala of which she was the 'absolute owner' and the same 'were not part or accretion to Bhagawat's (her husband's) estate'. Defendants Nos. 2 and 5 who are also the substituted appellants in the present appeal in place of the original deceased defendant No. 1 appellant, also by their written statement filed on 6th May, 1953, admitted that 'Bimala Debya was in ownership and possession of the disputed properties being her Stridhan properties'. Defendant No. 1 (D. W. 4) began his oral evidence by saying 'Suit property belonged to my sister Bimala Debya. It was her Stridhan property' and affirmed the same again in the beginning of his cross-examination. The appellant's ground No. 9 before the Court of Appeal below was to the following effect:
'For that in any view of the matter the property being the Stridhan of Bimala Debya, can never devolve on the plaintiff and the pro forma defendants''.
After all this, it would be extremely difficult for the learned Advocate for the defendant appellant to contend that the properties were not Bimala's Stridhan properties.
17. I also affirm the finding of the Court of Appeal below that the question that the disputed properties were Bimala's Stridhan properties and not her husband's estate were finally decided in an earlier suit, viz., T. S. 59 of 1944 between the plaintiff and the pro forma defendants in the present suit and Bimala herself, through whom the defendant No. 1 appellant claims in the present suit, and is thus barred by the principles of res judicata. Mr. Dasgupta also does not challenge the said finding and cannot, in view of his client's specific admission in paragraphs 10 and 11 of his written statement in that behalf but he sought to advance his argument as hereinbefore stated, that on plaintiff's own pleading the properties were not Bimala's Stridhan properties, which is not accepted by me and I hold that the properties were her Stridhan properties.
18. Mr. Dasgupta's next attack was that even if the properties be Bimala's Stridhan pro-perties, they are Sulka (gratuity for which a girl is given in marriage) and according to Benares Sub-School of Mitakshara School, the defendant No. 1 appellant being Bimala's uterine brother, would first succeed to the said kind of Stridhan before her husband's heirs (plaintiff and pro forma defendants). It is undoubtedly true that the leading text on succession to sulka is that of Gautama which says that 'the sister's fee belongs to the uterine brothers' but such a defence was neither taken in the trial court and therefore not gone into by it. No evidence was even adduced by either party. No ground was taken in the Court of Appeal either. It appears that there is a discussion regarding the same by the learned Subordinate Judge who decided the appeal and it was rightly held by him that it was nobody's case. Faced with this difficulty, the learned Advocate for the appellant contended that the onus of proof as to Bimala's marriage in unapproved form was wrongly placed on his client, the defendant No. 1. In other words, he contended that the onus was on the plaintiff to show that Buna-la's marriage was in approved form in order to succeed in the suit but in my view the law is, that when a question arises as to whether a marriage was in an approved or in an unapproved form, the presumption is that it was in an approved form, unless the contrary is proved. Sir Guru-das Banerjee laid down the said proposition in a Bench decision of this Court, Jagannath Prasad Gupta v. Runjit Singh, ILR 25 Cal 355 that under the Hindu Law of the Benares School, in the absence of any evidence to the contrary, a marriage must be presumed to have taken place in one of the approved forms and therefore the heir of a woman to her Stridhan property is the nearest kinsman of her husband and not of her father. Mr. Dasgupta's contention on this score also fails.
19. Mr. Dasgupta's last argument to the effect that the compromise decree in suit No. 211 of 1921 (Ext. D) is res judicata between the parties is a cry in despair. I have carefully examined the said document which is a certified copy of an application only filed in Title Suit No. 211 of 1921 in the Court of Munsiff, Raghunathpur in which Bimala Debi was the plaintiff and Bijoylal Pandey 'and others' were the defendants. It was admitted in the said application that the plaintiff Bimala is the owner of the lands in the said suit and would possess the same till her life and after her death, the said lands would pass to the defendants. No copy of the decree (if any) passed on the said application was filed in the present suit showing that the said terms were incorporated in the decree, without which it is impossible to decide the question of res judicata. Moreover, no schedule of the properties attached to the said suit has been filed in the present suit to identify the lands in dispute in the present suit with the lands of suit of 1921. For the said purpose of identification Mr. Dasgupta drew my attention to paragraph 8 of the plaint and paragraph 17 of the written statement. But in my view, the statements made in the said paragraphs were also not very definite to substantiate that the lands were identical in both the suits. It is of course true that the appellant in his deposition stated that the lands are identical, but that would not be enough to find in favour of the defendant No. 1 appellant that the decision in the said suit is res judicata between the parties, not knowing whether there was any decision at all. The learned Subordinate Judge proceeded on the ground that Ext D being an unregistered document, should not be taken into evidence, but in my view the said reasoning of the learned Subordinate Judge was not correct because the Registration Act was amended in the year 1929 and the said petition was filed in the year 1921, It would be also extremely hazardous to come to any finding as to whether the above compromise was recording a matter extraneous to the suit or not, for want of sufficient materials as hereinbefore stated. Both the Courts below further held on evidence that the said document, Ext. D, had been brought about by the defendant No. 1 appellant collusively and fraudulently and that Bimala did not arrive at the compromise out of her free volition. The same is finding of fact and I am afraid it would not be proper for me to set aside the said finding in a Second Appeal. But Mr. Dasgupta still contended that if any person wants to have a compromise decree set aside on the ground of fraud that should have been done by a regular suit and in support of that proposition placed before me the case of Sufesh Chandra v. Jogesh Chandra : AIR1939Cal658 . I do not quarrel with the proposition laid down by Mr. Justice Bijan Kumar Mukherjea in the said decision, but I do not see why in a regular suit, out of which the present Second Appeal arises, a party cannot challenge a document to be fraudulent and collusive and cannot prove the same in a suit as in the instant case, without having recourse to another suit only for the said specific purpose.
20. Though all the contentions raised by Mr. Dasgupta on behalf of the appellant fail, still there is a point to be considered. The Trial Court decreed the suit, as I have already stated, as regards 1/5th share in the said property in favour of the plaintiff and there was a decree for joint possession in his favour along with the principal defendants Nos. 1 to 5. There was no decree passed by the Trial Court in favour of pro forma defendants Nos. 6 to 9. Against the said decree of the Trial Court the defendant No. 1 preferred an appeal to the Court of Appeal below, possibly also thinking that the decree had been passed in favour of pro forma defendants Nos. 6 to 9, and that, as if, no decree was passed in his favour and on the said assumption, he based his grounds of appeal also. The learned Subordinate Judge dismissed the appeal of defendant No. 1, and declared the plaintiff's title in respect of 1/5th share but nonetheless passed a decree in respect of the remaining 4/5th share of the properties in favour of the pro forma defendants Nos. 6 to 9 also, though they did not prefer any appeal to the Court of Appeal below. In my view the learned Subordinate Judge was in error in the passing of a decree in favour of the pro forma defendants Nos. 6 to 9 in the remaining 4/5th share, which should be set aside. The title to the said 4/5th share is kept open between the appellants and the pro forma respondents and I make it clear that any observation or finding made in this judgment would be without any prejudice to the contentions, if raised hereafter between Defendant No. 1 appellant and the pro forma defendants in respect of the said 4/5th share.
21. In this view of the matter I affirm the decree of the Court of Appeal below to the extent of the declaration of the plaintiffs title in respect of 1/5th share of the suit property and I also affirm the decree that the plaintiff shall recover khas possession by evicting the principal defendants from the same. But the decree of the said Court declaring the title of pro forma defendants Nos. 6 to 9 in the remaining 4/5th share of the suit property is set aside and the prayer of the plaintiff as to joint possession with the pro forma defendants Nos. 6 to 9 is dismissed. The plaintiff would also be entitled to the mesne profits and the same would be determined in a separate proceeding as decreed by the Court of Appeal below. The appeal is thus disposed of.
22. There will be no order for costs in thisappeal.