1. Two ladies, Giribala and Radharani Debi inherited an estate from their father, who was governed by the Dayabhaga School of Hindu law. They sued the appellant for arrears of rent for 1335 to the Augrahyan Kist of 1338 B.S. The suit terminated in a consent decree passed on 26th September 1932 for the amount of Rs. 1508. Rs. 400 was paid by the appellant on the date of the decree and the balance was made payable in three instalments in the following manner: (i) Rs. 369 in Sraban 1340 (July-August 1933)(ii) Rs. 369 in Sraban 1341 (July-August, 1934)(iii) Rs. 370 in Sraban 1342 (July. August, 1935). The first two instalments were paid. The present execution started on 19th August 1938 is by Eadharani alone for the recovery of the third instalment. Giribala was dead at the time, she having died on 2nd July 1938. Binapani the daughter of Giribala is heir to her stridhan properties. She applied to the executing Court on 5th September 1938 to be added as a party to the proceedings, but her application was refused. Her object, as expressed in her application, was to certify a payment said to have been made to her mother in full satisfaction of her claims under the decree.
2. The objection of the judgment-debtor appellant raises only one point, namely whether Radharani could execute for the whole of the balance due on the decree. He could not plead any payment out of Court to Giribala as alleged by Binapani, as his application for having the said payment certified would be out of time. The objection raised by him depends upon the question whether rent left unrealised by Giribala passed to her sister Radharani by survivorship. Both the Courts below have answered this question in favour of Radharani on the ground that an estate inherited by two or more females from a male is taken jointly and passes on the death of one of them to the others by survivorship. In our judgment this by itself does not dispose of the question in controversy.
3. It is settled law that two or more females inheriting from a male take under the Hindu law a joint estate and on the death of one of them her interest passes to the rest by survivorship, unless by an arrangement between them the right of survivor, ship had been relinquished: K6ailash Chandra v. Kashi Chandra (1897) 24 Cal. 339 and Parbati Kuer Baij Nath Prasad (1936) 23 A.I.R. Pat 200. The income of the estate however belongs to them absolutely and may on the death of one or of all of them have a different direction from the corpus. This aspect of the question has been over-looked by both the lower Courts. The decided cases relating to the income accruing during the life-time of a female heir who has by inheritance taken a limited interest in the corpus can be classified under two main heads: (i) when the income had been received by the female herself or by some one on her behalf or held by some one who can be regarded as holding the same on her behalf and (ii) when the income has not been realized at all, the tenants and other persons liable to pay not having paid. There are many decided cases falling within the first head; decisions dealing with the second case are very few in number.
4. The cases falling within the first head may be sub-divided. The first sub-division is where the female actually received the income and either spends it or disposes of it during her lifetime or by will. Her dispositions are valid on the ground that she had absolute property in it. The second sub-division is where the female receives the income and accumulates some of it but does nothing more with regard to it up till her death. In that case the accumulations of income will follow the corpus of the estate: Isri Dutt Koer v. Hansbutti Koerain (1884) 10 Cal. 324 at p. 158. The third sub-division is where the income is received by her or her agent and saved and the savings had been invested by her but has not been disposed of by her. In such a case, her intention either expressed or necessarily implied for her acts and dealings is the only material factor. If she intended to incorporate it with the corpus, it would follow the corpus. The person taking the corpus under the Hindu law will also take it. Once she had manifested her intention to treat it as part of the corpus it becomes an accretion thereto and cannot be separated from it by her subsequent acts or expressions of intention: 10 I A 150.3 In the absence of incorporation, and the onus is on the party who alleges incorporation, the fund would be her personal property and would on her death devolve on her personal heir: Nirmala Sundari Dassi v. Deva Narayan Dass : AIR1927Cal868 and Parbati Kuer Baij Nath Prasad (1936) 23 A.I.R. Pat 200. The fourth sub-division is where the income is actually realized but is kept with a stake holder for the ultimate benefit of the successful party to a litigation, the female being one of the parties to the suit, the title to property being ultimately adjudged by the Court in her favour but after her death. This was the case in Venkatadri Appa Rao v. Parthasarathi Appa Rao . The fund representing the income would belong to her absolutely. It is on the principle that to make it an accretion to the corpus a manifestation of her intention to incorporate is required. Where she had not so expressed her intention and had not, as in this case, any occasion to do so, she not knowing for certain that the fund was hers, the fund would pass by her will to the legatees. This case ultimately rests on the question of burden of proof, for in the absence of any proof of intention on the part of the female to incorporate the fund with the corpus, the fund would not be treated as accretion.
5. Decided eases of our Court under the second main head have ruled that the right to the unrealized income falls to the estate of the last male owner. In Bhagabati Koer v. Sahudra Koer (1912) 16 C.W.N. 834 at p. 837 Mookerjee and Carnduff JJ., held that the rents not realized by the female from the tenants could not be regarded as temporary savings, so as to be her personal property liable for her personal debts. The case in Rivett Carnac v. Jivibai (1886) 10 Bom 478 was expressly distinguished on the ground that in that case the income had actually been received by the female's agent. The same distinction in our judgment exists in Sita Ram v. Dulam Kuar (1919) 6 A.I.R. All. 338 cited by the appellant, where the income was actually received by the lady and invested by her in mortgage. The aforesaid observation in Bhagabati Koer v. Sahudra Koer (1912) 16 C.W.N. 834 at p. 837 implies that the law formulated in cases dealing with a female's savings, to the effeot that her intention is material and in the absence of an intention to incorporate, the savings are her personal and absolute properties and would necessarily pass on her death to her personal heirs in case of intestacy, would not apply to the case where the income had not been realized. In Sarat Chandra v. Charusila Dassi : AIR1928Cal794 Page J., sitting singly held that rent unrealized at the death of the females would not pass to her personal heirs or the legatees under her will, but would devolve upon the reversioner of the last male owner who takes the corpus. Having the right to enjoy the usufruct of the corpus, she can, observed Page J., during her lifetime spend the income as she liked, accumulate it or otherwise dispose it of. But if she did not spend it or dispose of it during her life-time 'it will follow the estate from which it arose' and would pass to the reversioner who gets on her death, the corpus: Sarat Chandra v. Charusila Dassi : AIR1928Cal794 . He held her will dealing with the accumulated income to be ineffective. It would, however, be difficult to agree with all his reasonings on the latter point. In Sarat Chandra v. Charusila Dassi : AIR1928Cal794 which was a case of an unrealized decree for mesne profits obtained by two sisters, B.B. Ghosh and Bose JJ., held that the right in the decree passed on the death of one of the sisters to the surviving sister to the exclusion of the personal heir of the former, because the corpus had passed to the latter by survivorship. The decision proceeds upon the view that the right to realize the decree would fall into the corpus unless the deceased lady had manifested her intention to keep it separate. Saminatha Pillai v. Manikasami Pillai (1899) 22 Mad. 356 and Sita Ram v. Dulam Kuar (1919) 6 A.I.R. All. 338 were distinguished on that basis. In Sridhar v. Kali Pada (1912) 16 C.W.N. 106 it was held that a collecting agent appointed by a Hindu widow, who had not paid over the income to her, was on the widow's death bound to account not to her personal heir but to the reversioner of her husband. The reason given in support of the decision was that the profits not paid over to the widow were to be treated as savings not disposed of by her, and so would follow the corpus. For that proposition the observations in Isri Dutt Koer v. Hansbutti Koerain (1884) 10 Cal. 324 at p. 158 of the report were relied upon.
6. The observations of Sir Arthur Hobhouse in Isri Dutt Koer v. Hansbutti Koerain (1884) 10 Cal. 324 at p. 158 to the effect that if the female had made no attempt to dispose of her savings during her life time they would follow the estate from which they arose, in our judgment, cover, as is the decision in Sridhar v. Kali Pada (1912) 16 C.W.N. 106 the second sub. division of the first main head. The later decisions of the Judicial Committee of the Privy Council Venkatadri Appa Rao v. Parthasarathi Appa Rao and Balsubramanya v. Subbaya Tevar have the effect of further qualifying this statement of the law by recognizing in her the power to give a different direction to her savings by her will. We think that the case falling with the second main head, which is the case before us, ought to be governed by the principle laid down in the aforesaid passage in Isri Dutt Koer v. Hansbutti Koerain (1884) 10 Cal. 324 as qualified in the manner stated above; that is to say, the savings would follow the corpus and devolve in the same manner as the corpus if the female had made no attempt to dispose of them either during her lifetime or by her will. It is on this principle that we hold that the actual decision in Bhagabati Koer v. Sahudra Koer (1912) 16 C.W.N. 834 and in Bharateswari v. Bhagban Chandra : AIR1928Cal759 is right and we accordingly follow the same. In Bankim Behari v. Probodh Chandra : AIR1934Cal284 a Single Judge of this Court took a different view without considering the aforesaid decisions of the Division Bench of this Court. The said decision is not binding on us and we are not prepared to follow it. As in kailasanath Mudaliar v. Vadivanni (1935) 22 A.I.R. Mad. 740, Sridhar v. Kali Pada (1912) 16 C.W.N. 106 and Bharateswari v. Bhagban Chandra : AIR1928Cal759 were dissented from on the ground that they proceed upon the view in Isri Dutt Koer v. Hansbutti Koerain (1884) 10 Cal. 324 which subsequent decisions of the Judicial Committee have shown to be wrong it is necessary to examine it in some detail.
7. Two daughters had inherited the stridhan properties of their mother. But the properties were in the possession and management of their father and brother (defendants 1 and 2). Defendant 1 had acquired some properties from the income that had accrued in the mother's lifetime and other properties from the income which had accrued during the daughters' lifetime. The two daughters sued the defendants for the possession of all these three classes of properties and for mesne profits. The claim in the suit accordingly comprised, (a) the properties left by the mother, (b) the properties acquired from the mother's income, (c) the properties acquired from the income due to the daughters and (d) mesne profits. One of the daughters died during the suit and the dispute was between her heir and her surviving sister.
8. The first two items represented the corpus and the third item falls within our third-sub-division of the first main head. The Madras High Court dealt with the third and fourth items of the claim together and made no distinction between the two. The main grounds on which the decision was rested are the following: (a) the observation in Isri Dutt Koer v. Hansbutti Koerain (1884) 10 Cal. 324 at p. 158, on which we have relied was not taken to have embodied any decision or even a pronouncement by the Judicial Committee on a point of law p. 502, kailasanath Mudaliar v. Vadivanni (1935) 22 A.I.R. Mad. 740 (b) that Bharateswari v. Bhagban Chandra : AIR1928Cal759 and Sridhar v. Kali Pada (1912) 16 C.W.N. 106 had been decided on a view in Isri Dutt Koer v. Hansbutti Koerain (1884) 10 Cal. 324 which had since been declared wrong by Venkatadri Appa Rao v. Parthasarathi Appa Rao and that the statement of the law on the subject in Mayne, Trevelyan, and Golap Chandra Sarkar's treatises on Hindu law is wrong in view of the decision in Nirmala Sundari Dassi v. Deva Narayan Dass : AIR1927Cal868 which had not even been noticed in the last editions of those treatises; (c) that as the widow does not lose her power of control even at her death, but can deal with the accumulated income by her will, Venkatadri Appa Rao v. Parthasarathi Appa Rao there is no reason for drawing the line at testamentary disposition and refraining to reach the logical conclusion that, even if she happens to die intestate the surplus amount should be treated as her absolute property for the purpose of devolution as well (page 504), and (d) that there may be a distinction between the case of a widow and other female heirs, e.g. daughter inheriting either her father's estate or her mother's stridhan. We do not agree with the first reason. The observation in Isri Dutt Koer v. Hansbutti Koerain (1884) 10 Cal. 324 in our judgment, is a pronouncement of the Judicial Committee on a point of law, and though obiter is binding on us. The second reason is couched in wider terms than the decision in Venkatadri Appa Rao v. Parthasarathi Appa Rao would justify. That case held the will of a female to be effective over the saving from the income that had accrued in her lifetime. Taken with the observations in Isri Dutt Koer v. Hansbutti Koerain (1884) 10 Cal. 324 the law would be that if the female had made no attempt to dispose of them during her lifetime or by her will, they would follow the estate from which they arose. The third reason is, as has been expressly stated, a logical extension of Venkatadri Appa Rao v. Parthasarathi Appa Rao . If the matter had been res integra there would be great force in that, but the aforesaid observations in Isri Dutt Koer v. Hansbutti Koerain (1884) 10 Cal. 324 stand in the way. The distinction drawn in the fourth reason cannot be regarded to be sound. In a course of decisions the powers of other female heirs have been measured by the powers of the widow. We do not accordingly feel justified in dissenting from the two decisions pronounced by two Division Benches of this Court or required to refer the matter to the Full Bench. If therefore the third instalment or any part thereof remained due at the death of Giribala, the whole of it passed on Giribala's death of her surviving sister Radharani and she alone would be entitled to execute the decree.
9. The last question is whether Binapani's prayer to be added as a party had been rightly refused. She wanted to be made a party only for the purpose of certifying a payment said to have been made by the appellant to Giribala out of Court on the basis of which she was said to have been fully satisfied. The date of the payment was beyond the time within which the judgment-debtor could have certified the payment. The payment, if it had been made, could have been certified by Giribala at any time during her lifetime, there being no bar of time in the case of a decree-holder: Shri Prokash Singh v. Allahabad Bank Ltd. (1929) 16 A.I.R. P.C. 19 On her death, the 'certificate can in our judgment be given only by the person who would have been entitled to execute the decree if any balance remained due in her share. That person would be considered to be her legal representative in proceedings before the executing Court. We have already held that Radharani, the surviving sister, would have been the only person to execute, if anything remained due in Giribala's share. She and she alone would, in our judgment, be the person who could certify. In this view of the matter, Binapani had no locus standi and her application has accordingly been rightly dismissed. The result is that this appeal fails and must be dismissed with costs; hearing fee 2 (two) gold mohurs. Let the record go down as early as possible.