K.C. Das Gupta, J.
1. The subject-matter of this litigation is land which was purchased by one Kenamoni Dassi. The plaintiffs who are the sons of one of Kenamoni's brothers brought a suit for declaration of their title to the land and for recovery of khas possession jointly with the other living brother of Kennmoni and the descendants of another brother. They averred in the plaint that the property was purchased with Kenamoni's Shri-dhan and became her personal property so that on her death it was inherited by the three brothers as Kenamoni's heirs and that ultimately after the death of two of the brothers, they, the sons of another brother and Tustu Charan Ghose, the third brother were in joint possession, but that Tustu having obtained a document of transfer from Kenamoni's husband's brother and having disturbed their possession they came to court
2. The main defence was that this property having been purchased by Kenamoni with the accumulated income of her husband's estate was thereafter amalgamated with her husband's property so that it became an accretion of Kenamoni's husband's estate and was thereafter inherited by her husband's brother Surendra. Surendra, it is said, thereafter settled this land with Tustu by a Patta and sold his interest to Tustu's wife Jnanadamani.
3. The learned trial court dismissed the suit being of opinion that on Kenamoni's death the property was inherited by Surendra and on appeal the learned Subordinate Judge directed three additional issues to be framed, two of which were in these terms:
(1) Did Kenamoni Dasi purchase the property with the income derived from her husband's estate?
(2) Did Kenamoni throw the lands in dispute to the corpus of the estate left by her husband? If not, did she treat these lands as her stridhan property alleged to have been acquired by her from the income of her husband's estate?
4. The learned Subordinate Judge directed the lower court to send his findings on these questions to him. The findings were that the properties were acquired with the income derived from her husband's estate and that Kenamoni did not throw the lands in dispute into the corpus of the estate, but treated them as her stridhan.
5. The learned Subordinate Judge who heard the appeal after receiving these findings also came to the same conclusinon and on that basis allowed the appeal by the plaintiffs and decreed their suit. On second appeal to this Court, the main point raised before my learned brother Renupada Mukherjee, J. was that the very fact that the property was purchased by Kenamoni from the accumulations of the income of her husband's estate raised a presumption that the property became a part and parcel of her husband's estate and that the lower courts had not taken note of this presumption in law. Renupada Mukherjee, J, came to the conclusion after consideration of the authorities that when a widow purchased other properties with the savings of the income of her husband's properties the acquired property should be regarded either as an accretion to the parent estate or as her absolute property according as the widow intended to make it an accretion or to treat it as her separate and absolute property, and further, there will be no presumption either way and each case will be governed by its own facts and circumstances.
6. There is no dispute that if there is clear evidence of any intention on the part of the widow to make the acquired property an accretion to her husband's estate, it will form a part of the husband's estate, and if on the other hand, there is clear intention on her part to treat it as a separate and absolute property, this will be her stridhan and will descend to her own heirs. The question is whether there is any presumption as contended for by the learned Advocate for the appellant before Renupada Mukherjee, J. and before us in this Letters Patent appeal from his decision.
7. On the question whether property acquired by a widow with the accumulated savings out of the income from her husband's property is an accretion to her husband's property or her stridhan, there has been some divergence of judicial opinion. It may be taken as settled law as indicated above that if there is evidence indicating the intention of the widow that' the property will become an accretion to her husband's property, the property will be such accretion, and if, there is evidence indicating intention of the widow the property will be her stridhan, it will form her stridhan. Differences have however arisen as to what will be the legal position if there is no evidence indicating intention either way.
8. The earliest case which may profitably be mentioned is Gonda Kooer v. Kooer Oodey Singh, 14 Beng LR 159 (PC) (A). One of the questions that arose there was whether the lands and houses purchased by Khoosal Kooer widow of Nem Singh out of the proceeds of Nem Singh's estate belonged to the widow absolutely or formed increments to Nem Singh's estate. The conclusion was stated in these words:
'Their Lordships are of opinion that Khoosal Kooer must be presumed to have intended to make her purchases as accretions to that property; nor do they see any evidence to rebut this presumption.' After mentioning that the property in question had been understood by Puddum Singh to be part of Nem Singh's estate, they go on to say:
'It therefore becomes unnecessary to decide what might have been the effect of a distinct intention on her part.....'
9. In Isri Dut Koer v. Mt Hansbutti Koerain, 10IA 150 (PC) (B), the Judicial Committee held on the evidence that the widow had not made any distinction between the original estate and, the after puchases and held that the absence of evidence of such distinction justifies the conslusion that the after-purchases were accretions to the original estate.
10. The matter was put by the Judicial Committee in clearer language in Sheo Lochun Singh v. Saheb Singh, 14 Ind App 63 (PC) (C). After referring to Isri Dut's case (B) and the statement of the law therein as mentioned above their Lordships said:
'Where a widow comes into possession of the property of the husband, and receives the income, and does not spend it, but invests it in the purchase of other property, their Lordships think that, prima facie, it is the intention of the widow to keep the estate of the husband as an entire estate, and that the property purchased would, prima facie, be intended to be accretions to that estate.'
They go on to say that on the facts of the case it was correct to say that the intention of the widow was not to create a separate estate, but to keep the whole as one entire property. It is in view of this conclusion on the facts of the case that some courts in India have thought that the observations of the Judicial Committee in this case mentioned above were obiter dicta. It seems to me clear that the Privy Council was making these observations as a statement of the law, and whether or not, in view of what they later stated to be the effect of the evidence, such a statement was really necessary for the decision of the case, the statement of the law is as a statement of the lawbinding on us, unless superseded by statute or any later decision of the Privy Council or any decision of the Supreme Court. It will be convenient to mention here that though this question came up before the Supreme Court in Sitaji v. Bijendra Narain, : AIR1954SC601 the point was really not decided as in the particular case there was clear evidence of the widow's intention to keep the property separate. Mr. Mitter has drawn our attention to the observations of the Supreme Court in these words;
'It is admitted here that the widow purchased them out of the savings made by her, from the income of her husband's estate but that does not necessarily make it an accretion, because a Hindu widow has an absolute right to the income and is not bound to save any of it for the reversioners.'
In my judgment, their Lordships of the Supreme Court were not in this passage laying down any decision on the question whether there would be any presumption because, as they mentioned later on that the question was only one of intention and there was in the particular case clear evidence of intention. It appears to me that in view of this they did not think it necessary to express any view on the question whether there was a presumption as contended before us.
11. In Sowdaminee Dossee v. Administrator-General of Bengal, 20 Ind App 12 (PC) (E) the question was whether Government securities purchased by the widow with the accumulations of the income of her husband's estate, which income she received on agreement with another claimant to the estate, was the widow's personal property. The High Court pointed out that in view of the agreement between the parties the widow had no estate of her husband in her hands for her to augment and with this the Judicial Committee agreed. Dealing with the argument that as the investment was of a permanent nature it should be held to be an accretion to the husband's estate, their Lordships said:
'It was said she had placed it in investments of a permanent nature. Had she done so, it does not appear to their Lordships that this circumstance alone would have added the fund to the estate devolving on her husband's heirs.'
Their Lordships proceeded to point out that these promissory notes 'were negotiable instruments transmissible by mere indorsation', that the other funds received by her were invested in the same way and at the same time, that the fund was not kept separate, but was mingled with her general personal means, that there was a distinct statement by her that she had received the fund as her absolute property and had invested it in Government securities 'for my own absolute benefit,' & without any intention or desire to make the same or any part thereof accumulations to the estate of the said Baboo Nobocoomar Mullick. If the judgment is read as a whole it seems clear that decision that the Government promissory notes were not accretions to her husband's estate was decided on the peculiar facts of the case.
12. In the next case Raja of Ramnad v. Sundara Pandiyaswami Tevar, 46 Ind App 64: (AIR 1918 PC 156) (F), a suit was brought against the Raja of Ramnad for declaration of right to an annuity payable to Sivaswami Tevar and his heirs and for payment thereof with arrears originally by two persons one claiming to be the adopted son of Sivaswami and the other, the widow of the previous grantee. The story or adoption was disbelieved. On the widow's death-the next reversioner sold his rights to Sundara who thereupon prayed to be brought on record as the legal representative in place of the deceased widow. The prayer was allowed and ultimately a decree for declaration of annuity for payment of the arrears, and the declaration of the annuity being charged on a part of the estate was passed. In appeal before the Privy Council, a point was taken that the widow's claim to the arrears of maintenance could not have passed to Sundara, and so the suit should fail as regards that claim. Rejecting this contention their Lordships said:
''The answer to this is that a widow may so deal with the income of her husband's estate as to make it an accretion to the corpus. It may be that the presumption is the other way. But at the outside it is a presumption....'
13. It is said that this indicates that their Lrodships were no longer prepared to affirm the proposition laid down in the case of 14 Ind App 63 (PC) (C).
14. I do not think we are justified in reading into this decision more than what their Lordships did say. They certainly do not say that there was a presumption ''the other way'. On a reasonable reading,, the observation of the Privy Council, taken with what followed, means no more than this that assuming, without affirming that there was a presumption the other way that is, in favour of the widow's income not being an accretion to the husband's estate, it was not necessary to consider the question, for that was at the best a rebuttable presumption, and such a case not having been made in India, could not be allowed to be raised for the first time before the Privy Council, It is further to be noticed that in this case the income was still not invested in any property.
15. Four years after the Raja of Ramnad's case (F), the question we are considering came again before the Judicial Committee in Naba Kishore v. Upendra Kishore, AIR 1922 PC 39 (G). The question was-whether the appellants had acquired good title by the purchase of the property from the widow of Madhu-sudan. It was contended that the property sold had-been acquired by the widow out of her stridhan and that consequently she was free to deal with it as she-thought best. Rejecting this contention their Lordships said:
'Now there can be no doubt that whatever stridhan she possessed was due to accumulated savings from the income of the property which she received from her husband's estate, and though it is true that when that property had been received it would be possible for her so to deal with it that it would remain her own, yet it must be traced and shown to have been so dealt with, and in this case there is no sufficient evidence of this having been done'
In this case also the Judicial Committee were of the view that unless the property is 'traced and shown to have been so dealt with' that it would remain her own property, the property with such savings would become an accretion to her husband's estate. The fact that in this case their Lordships referred to some recitals in the deed of transfer as showing that widow herself thought the property to be such an accretion does not alter the position.
16. Less than three years later (January 1925) three appeals reported as Venkatadri Appa Rao v.Parthasarathi Appa Rao ) (H) were decided by the Judicial Committee. In the three suits, the different plaintiffs claimed to recover different sums of money respectively bequeathed to them by one Venkayyama, a widow. It was argued that Venkayyama was not competent to deal with the whole income derived from the income ofthe Medur estate. Their Lordships said
'If Venkayyama had actually received that income she might have added it to the Medur estate as an accretion, but she did not, and it remained at their absolute disposal by will or otherwise.' In Balasubrahmanya v. Subbayya Tevar the Privy Council had to consider inter alia the question whether the widow was free to dispose of by a will a sum of Rs. 89,000/- accumulated out of the income of the estate. The High Court had in disagreement with the District Judge held that these savings were her properties and, did not go with her husband's estate. In coming to this conclusion the learned Judges of the High Court said:
''There is nothing to show that she intended to add it to the main estate as an accretion. On theother hand the letters which she was constantly addressing to the Court of Wards show that she treated this property as at her disposal and did not intend to make it an accretion to the estate.''
This discussion of the evidence was preceded by a statement of the law. The Privy Council did not discuss the law but merely said:
'The correctness of the High Court's findings has not been seriously contested before the Board in either case (viz. as regards the accumulations and as regards jewels etc.) and their Lordships see no reason to differ from the High Court's findings. In view of the fact that the High Court had based the finding referred to on a definite conclusion that the widow had treated the property at her disposal and did not intend to make it an accretion to the estate, the decision of the Privy Council affirming the finding cannot be taken to be a pronouncement of the question of law-'
17. Reviewing these decisions of the Privy Council Sen, J. of the Nagpur High Court has said that it is not possible to reconcile these different pronouncements of the Privy Council. The Madras High Court also appears to be of the view that the view of law as pronounced by the Judicial Committee in the earlier decisions in Isri Dut Koer's case (B), Sheo Lochun Singh's case (C) and Naba Kishore's case (G) already referred to is not the view which ultimately prevailed with their Lordships; and that the view affirmed by the Privy Council in Raja of Ramnad's case (F), Venkatadri Appa Rao's case (H), and Balasubrahm-anya's case (I) already referred to is different and should be taken to have established the law that (a) where the widow has accumulated the savings out of the income of her husband's estate, that income in the absence of evidence showing that she added it to her husband's estate as accretion could be dealt with by her in any way she liked and on her death interstate would descend to her stridhan heirs; and (b) where she invested the accumulated savings in moveable or immoveable properties that also would descend to her stridhan heirs in the absence of evidence that she intended to add it to her husband's estate as an accretion thereto in other words, the presumption, was that the widow intended to treat the income or the property in which the income had been invested as her own, and not as an accretion to her husband's estate.
18. With due reference to the eminent Judges who had taken these views, I am of opinion that this view is not correct. Reading the different pronouncements of the Privy Council together I have come to the conclusion that they are not irreconcilable. Leaving Sowdaminee's case (E) out of consideration for the present, it has to be noticed that in the latter cases of Raja of Ramnad v. Sundara Pandiyasami Tever (F); Venkatadri Appa Rao v. Parthasasthi Appa Rao (H) and Balasubrahmanaya v. Subbayya Tevar (I) reported in 46 Ind App 64: (AIR 1918 PC 56) (F) and respectively, referred to above they had to deal with the question whether the accumulated income of the widow which had not been invested was an accretion to the husband's estate and they may be taken to have said that the presumption was that it was not so, but the presumption could be rebutted by proving the widow's intention to the contrary. In the other cases Gonda Koer's case(A), Isri Dutt's case (B), Sheo Lochun Singh's case (C) and Naba Kishore's case (G) referred to above their Lordships had to deal with the question whether the immoveable property in which the accumulated savings out of the income of her husband's immovable property had been invested was an accretion to the husband's estate. It seems clear to me that in these four cases particularly those in Gonda Koer's case (A) Sheo Lochan Singh's case (C) and Naba Kishore's case (G) their Lordships laid down the law to be that when the income had been invested in such immovable property the presumption is that the widow intended to add the property to her husband's property.
19. In Sowdaminee's case (E), there was, it is true, an observation that even if the income had been put in 'permanent investment', that would not have made it an accretion to the husband's estate. The investment in that case was in Government Promissory notes; the income had been received out of the husband's immovable property. Their Lordships held that the investment was not of a permanent nature; but added that had the investment been of a permanent nature, that itself would have made no difference. It was unnecessary for diem to consider whether the investment of the income in immovable property would have made any difference, and they did not say anything about it. The fact remains, however, that when a case of investment of the income in the immovable property did come before the Judickl Committee 30 years later, their Lordships treated it as settled law that the presumption was that such immovable property was an accretion to her husband's estate.
20. I have, therefore, come to the conclusion that the law as laid down in 10 Ind App 150 (PC) (B); 14 Ind App 63 (PC) (C) and AIR 1922 PC 39 (G) has never been departed from by the Privy Council. That, law is that when the widow invests the savings from the income of her husband's estate consisting of immovable property in properties of the same nature the presumption is that she intended it to form an accretion to her husband's estate and so it became an accretion to her husband's estate, and this presumption can be rebutted by showing that her intention was not so. It may be mentioned that in this Courtin the case of Kula Chandra Chakravarti v. Bama Sundari Dasya, ILR 41 Cal 870: (AIR 1914 Cal 805) (J) which came up for decision in 1914, that is, after the Privy Council decisions in Isri Dutt's case (B) SheoLochun Singh's case (C) and Sowdamini's case (E) referred to above, this Court held that there being no evidence to show that the widow had made a distinction between the original estate and the after-purchases were accretions to her husband's estate.
21. In my opinion, therefore, my learned brother Renupada Mukherjee, J. was not right in saying that there was no presumption either way. The question, however, remains whether this presumption has been rebutted. I would myself not be inclined to agree with the view which apparently found favour with the court below that the fact that the land purchased was near the village where the brothers lived and away from the village where her husband's properties were was a ground for thinking that the widow treated the property as her stridhan. There is, however, another rinding of fact which I think cannot be lightly disregarded, that is to the effect that not only were the brothers in actual possession of the property which possession must be taken to be on behalf of the widow, but the widow allowed the usufruct to be enjoyed by the brothers and took for herself only a part of it for her maintenance. In my judgment, this finding of fact by which we are bound does justify the conclusion that the widow had the intention that this property would be her personal property and not merely an accretion to her husband's estate.
22. I would, therefore, dismiss this appeal, but in view of the fact that on the question of law we have come to a different conclusion from our learned brother Renupada Mukherjee, J. I would order that the parties would bear their own costs in this Court.
23. I agree.