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Mittulal Singhania and ors. Vs. Pursotome Debi Bagla - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1940Cal385
AppellantMittulal Singhania and ors.
RespondentPursotome Debi Bagla
Cases ReferredRamgopal Ghose v. Dhirendra Nath
Excerpt:
- .....bibi. they allege that pursotome devi bagla is entitled to the aforesaid' government promissory note as limited owner, she being the stridhone heir of johura bibi. they allege further that after the decree was passed in the suit referred to above, pursotome devi bagla is attempting to alienate the government promissory note. on these grounds they sue for an injunction restraining her from disposing of the promissory note and in the alternative for a receiver. the defence taken by pursotome devi bagla may be summarised as follows : 1. the suit as framed is bad inasmuch as the provisions of order 1, rule 8, civil p.c., have not been complied with. 2. the plaintiffs not being, the next reversioners are not competent to institute the suit. 3. the verification of the plaint is defective.....
Judgment:

Sen, J.

1. The plaintiffs who claim to be reversioners have instituted this suit in which they pray that the defendant Sm. Pursotome Devi Bagla, be restrained from dealing with certain property on the allegation that she is a limited owner thereof and is threatening to waste it. I set out below a geneological table, the accuracy of which is now admitted to show how the parties are related.

1st wife Brahamadutt = JAMUNADAS = Johura Bibi

(separated) died about 2nd wife died

died about 1899. 18-12-16 24.2.37.

_______________________________________________________________

| | | |

Rameswardas (adopted) Pursotome Rampeary-K Manvhari Bai-died

D. 12-3-37= Devi Bagla Singhania in the lifetime of

Mt. Mayna | | Johura Bibi

| Keshabdeo Padampat- |

Dwarkaprosad Kailashpat _________________

(minor) Lachmipat | |

Mittulal Sasonlal

2. The plaintiff's case is that Johura Bibi died possessed of certain stridhone property. She left behind her Eameswardas, the adopted son of her co-wife and two daughters Pursotome Devi Bagla and Rampeary. Her daughter Manvhari Bai predeceased her, leaving two sons, Mittulal and Sasonlal. They are the plaintiffs in this suit. Rameswardas died on 12th March 1937, leaving a widow, Mt. Moyna and a minor son Dwarkaprosad. In the year 1938 Pursotome Debi Bagla who is the present defendant instituted a suit in this Court against Moyna Bibi, Dwarkaprosad and Rampeary, for a declaration that the properties mentioned in the plaint of that suit constituted the stridhone property of her mother, Johura Bibee; she claimed these properties on the footing that she was the stridhone heir of her mother as she was an 'indigent daughter.' Her allegation was that Rampeary was married to a wealthy husband. In that suit Mittulal and Sasonlal were not parties. Rampeary did not defend the suit. Moyna Bibi and Dwarkaprosad raised various contentions but ultimately the suit was settled between them and Pursotome Devi Bagla. By the terms of settlement, it was declared that the property of Johura Bibi consisted of one 3 per cent. Government Promissory Note No. 109681 of the face value of Rs. 2,30,000. The parties compromising agreed that this Government Promissory Note should be made over to Pursotome Devi Bagla, who would be entitled to receive also all the arrears of interest. As Rampeary did not appear, a decree was passed against her ex parte, declaring that Pursotome Devi Bagla being an 'indigent daughter' was entitled to succeed to the stridhone property of the deceased Johura Bibi.

3. The present suit is instituted by Mittulal and Sasonlal, two sons of Manvhari Bai, the daughter who predeceased her mother, Johura Bibi. They allege that Pursotome Devi Bagla is entitled to the aforesaid' Government Promissory Note as limited owner, she being the stridhone heir of Johura Bibi. They allege further that after the decree was passed in the suit referred to above, Pursotome Devi Bagla is attempting to alienate the Government Promissory Note. On these grounds they sue for an injunction restraining her from disposing of the promissory note and in the alternative for a receiver. The defence taken by Pursotome Devi Bagla may be summarised as follows : 1. The suit as framed is bad inasmuch as the provisions of Order 1, Rule 8, Civil P.C., have not been complied with. 2. The plaintiffs not being, the next reversioners are not competent to institute the suit. 3. The verification of the plaint is defective and on that ground the suit should be dismissed. 4. Pursotome Devi Bagla has an absolute right to the property in suit and has not merely a limited interest. 5. Even if the interest of Pursotome Devi Bagla is that of a stridhone heir, the plaintiffs have not established any circumstance which would justify the Court in placing any fetter upon her full enjoyment of the property as stridhone heir.

4. In my opinion there is no substance in the first ground taken. Mr. Khaitan appearing on behalf of the defendant points out that a suit of this description by a reversioner is a representative suit and he draws my attention to the fact that in the plaint itself the plaintiffs state that they are suing 'for selves and all the reversionary heirs of Mt. Johura Bibi.' Mr. Khaitah's argument is that as the suit is a representative one, it necessarily follows that the plaintiffs should have proceeded in strict accordance with the provisions of Order 1, Rule 8, Civil P.C., that is to say, they should have applied for the permission of the Court to sue in a representative capacity, and they should have asked the Court to give notice of the institution of the suit at their expense to all the persons whom they sought to represent. For the purpose of establishing this proposition, Mr. Khaitan has cited a large number of cases, among which may be mentioned the case in V. Venkatanarayana Pillai v. V. Subbammal (1915) 2 A.I.R. P.C. 124 and Janaki Ammal v. Narayansami Aiyar (1916) 3 A.I.R. P.C. 117. In my opinion neither of these cases furnish any ground for the proposition that Order 1, Rule 8 has anything to do with a suit of this nature instituted by a reversioner. These cases are authority for the proposition that a reversioner bringing a suit of this description must be considered as representing the entire reversionary interest and not merely as representing himself and that the decision arrived at in such a suit would be binding on all the reversioners and on the person who would actually inherit the property as reversioner at the time that the reversion opens. They are no authority whatever either for the proposition that all the reversioners, both immediate and remote, should be joined in the suit or for the proposition that a single reversioner suing must follow the procedure laid down in Order 1, Rule 8, when there are other reversioners.

5. On the contrary the two Privy Council decisions show that it is permissible for a single reversioner to sue without making the other reversioners parties and without following the procedure laid down in Order 1, Rule 8. The very language of that rule shows that it is applicable only when two conditions co-exist, viz. : (1) where the parties are numerous and (2) where one of such numerous parties desires to be considered as a representative of the others for the purposes of the suit. It has no application where the parties are not numerous as here, nor has it any application where a person is vested with a representative character by virtue of his status. Order 1, Rule 8, applies where a person does not normally represent any one else but seeks to be clothed with a representative capacity only for the purposes of the suit. It is a rule of procedure which has been framed for the purposes of convenience. I hold therefore that this ground is of no substance and that there is nothing to prevent a single reversioner from instituting a suit of this nature without having recourse to the provisions of Order 1, Rule 8, Civil P.C., and without making the other reversioners parties even though there may be other reversioners entitled to the same reliefs.

6. The next ground taken, namely that the plaintiffs not being immediate reversioners, are not entitled to sue, is also not sustainable so far as this province is concerned. There can be no doubt that ordinarily the person entitled to institute a suit of this description is the immediate reversioner and that a remote reversioner is not permitted to institute such a suit unless the immediate reversioner has refused to institute such a suit or is in collusion with the limited owner, or has in some way disentitled himself from instituting such a suit. This rule was laid down in Rani Anand Kunwar v. Court of Wards (1882) 6 Cal. 764 where their Lordships say:

As a general rule such suits must be brought by the presumptive reversioner, that is to say, by the person who will succeed if the widow were to die at that moment. They are also of opinion that such as suit may be brought by a more distant reversioner, if those nearer in succession are in collusion with the widow or have precluded themselves from interfering.

7. This Rule was again laid down in V. Venkatanarayana Pillai v. V. Subbammal (1915) 2 A.I.R. P.C. 124 at p. 130. Ordinarily, therefore, a remote reversioner is not entitled to institute a suit unless he can show that the next reversioner has precluded himself from instituting a suit or has refused to institute a suit or is in collusion with the limited owner. I do not wish to say that the conditions mentioned by me above are exhaustive or that there may not be other conditions under which the remote reversioner would be entitled to institute such a suit but these are generally the grounds upon which a remote reversioner may be permitted to sue. So far as the province of Bengal is concerned, however there is another circumstance which would entitle the remote reversioner to institute a suit of this description and it is this : Where the next reversioner is a female, who would also get a limited interest the remote reversioner who would get an absolute interest is entitled to sue for the prevention of waste, or for a declaration that an alienation by the limited owner is bad on the ground that it was made without legal necessity. This principle has been laid down in Abinash Chunder Majumdar v. Harinath Shaha (1905) 32 Cal. 62. Their Lordships Brett and Mukherjee JJ. after reviewing a large number of the old decisions of the Courts in Bengal, held that:

Where the nearest reversioner was a female who would herself get a limited interest in the property the remote reversioner, who would get an absolute interest, is entitled to sue the limited owner in order to restrain her from wasting the estate.

8. Mayne in his well-known treatise on Hindu Law (Edn. 10), in dealing with this question says at p. 813:

In Calcutta, Madras, Allahabad and Fatna, it has been held that where the nearest reversioner is a female and would only be entitled to a limited interest, the reversioner next to her is competent to sue.

9. Mr. Khaitan relies upon the case in Bhupendra Nath v. Bhuban Chandra (1936) 41 C.W.N. 392. That case has in my opinion no application to the question under discussion. Their Lordships were there dealing with the locus standi of certain persons who had applied for revocation of probate of a will and they held that where the nearest reversioners had applied for revocation of probate and had failed, this decision would be binding on the remote reversioners although they had not been made parties to the previous application. I cannot see how the decision in this case can throw any light on the question under discussion. Mr. Khaitan has not been able to show any case of this Court which has affected the decision in Abinash Chunder Majumdar v. Harinath Shaha (1905) 32 Cal. 62. That case lays down a principle which has been well established by a series of older decisions and I propose to follow that decision not only because I consider that the principle laid down is well founded but also because I feel that I would not be justified in deviating from a rule of law laid down by a long series of decisions for a considerable period. In the present case the immediate reversioner is Rampeary. She is a female and would acquire only a limited interest in the property; the plaintiffs are therefore entitled to institute this suit although they are remote reversioners.

10. There is some substance in the ground concerning the defective verification of the plaint. In the plaint, paras. 7, 8 and 9 contain allegations that the defendant is about to alienate the Government Promissory Note in order to deprive the reversionary heirs. In the verification the plaintiff Mittulal Singhania states that the statements contained in paras. 7, 8 and 9 are his submissions. Obviously the statements there are not submissions but allegations of fact upon which the plaint is rested. Learned Counsel for the plaintiffs conceded that the verification is defective and he prayed for leave to amend the verification. In my opinion this leave should be granted. The defect is a mere irregularity and it has prejudiced nobody. To allow this defect to stand in the way of the plaintiffs' success, if the other facts alleged by them are established would be to defeat the ends of justice. I would repeat the words used by Page J. in Ramgopal Ghose v. Dhirendra Nath : AIR1927Cal376 that:

I feel strongly that the rights of litigants ought not to be decided upon the splitting of a straw.

11. In that case his Lordship held that a defect as regards verification was an irregularity that could be cured by amendment. The plaint has now been amended and the plaintiff has stated that he believes the allegations contained in the aforesaid paragraph to be true, and that they are based upon information received from one Girdharilal. I now come to the defence regarding the merits of the case. It is said that the defendant Pursotome Devi Bagla is not a limited owner but the absolute owner of the property in suit which as I said before constitutes a Government Promissory Note which formed part of the subject-matter of the suit instituted by her against Dwarkaprosad Moyna Bibi and Eampeary. Mr. Khaitan's contention is that Pursotome Devi Bagla has obtained this property by way of compromise and therefore this property has become her absolute stridhone property. Mr. Khaitan frankly stated that personally he did not feel that he could press this point with any insistence but he placed it before the; Court for a decision. He relied upon a passage at p. 133 of Mulla's Principles of Hindu Law, Edn. 8. The learned author states there that property obtained by a woman under a compromise in consideration of her giving up her rights in relation to her stridhone is stridhone according to all schools, and that property obtained by a widow under compromise with her adopted son is her absolute property. Now in the present case Pursotome Devi Bagla, strictly speaking, did not obtain this property by virtue of a compromise. It is true that two of the defendants compromised the suit but the other daughter Rampeary did not enter into any compromise. She did not defend the suit and the Court declared upon the evidence that Pursotome Devi Bagla was entitled to a limited interest in the property as an indigent daughter in preference to Rampeary who was affluent. Again Pursotome Devi Bagla did not claim an absolute right in the property; she claimed only a limited interest in the property as a stridhone heir. She was awarded the property on that footing. It cannot therefore be said that she got the property as the result of a compromise or that she was given an absolute interest therein.

12. I now take up for consideration the last ground urged on behalf of the defendant. The evidence adduced on behalf of the plaintiffs is that the defendant has stated that she had obtained the promissory note by instituting a suit with the help of certain persons and that the plaintiffs had no right in the note. She said further that she was going to sell the promissory note and pay the pleaders and others who had assisted her in her suit, the sum of Rs. 50,000 to Rs. 60,000. (After considering certain evidence his Lordship concluded.) I hold upon the evidence that the defendant informed Giridharilal that she intended to dispose of the promissory note as soon as she got possession of it and that her intention was to spend Es 50,000 to Rs. 60,000 out of the sale proceeds for the purpose of remunerating the persons who had assisted her in the suit instituted by her.

13. The next question which arises is whether these circumstances are sufficient to justify an order restraining the defendant from dealing with the property. It is not necessary for me to deal with all the cases which have been cited by Mr. Khaitan to show what amounts to legal necessity and what does not. I am fully aware that the costs of necessary litigation for the purpose of obtaining property to which a limited owner was entitled would constitute legal necessity but the costs must be reasonable costs. The suit instituted by the defendant lasted one day. It was undefended so far as Rampeary was concerned, and it was settled so far as the other defendants were concerned. To suggest that Rs. 50,000 to Rs. 60,000 would be the legitimate expenses of such a suit is ridiculous. The plaintiffs have established to my satisfaction that the defendant is threatening to alienate the property and to distribute a large portion of it amongst certain persons. Admittedly the defendant is a person in straitened circumstances. Her right as limited owner to the promissory note is based on the fact that she is an indigent daughter. If therefore the defendant spends the sale proceeds of this promissory note it is probable that the reversioners will not be able to get any pecuniary compensation for the invasion of their rights. All the requisites for the issue of a perpetual injunction as provided for in Section 54, Specific Belief Act, are present in this case and I am of opinion that an injunction should issue against the defendant. The following issues were framed:

(1) Have the plaintiffs any cause of action?

(2) Are the plaintiffs entitled to any of the reliefs claimed at all or in any representative capacity?

(3) Has Rampeary got three sons, Padampat Singhania, Kailaspat Singhania and Laksmipat Binghania?

(4) What is the nature of the interest acquired by the defendant under the decree in Suit No. 2154 of 1938?

(5) Are the plaintiffs entitled to rely on any case of fraud as against the defendant? If so, what case of fraud? Did the defendant commit any such fraud?

(6) Are there any circumstances as alleged justifying the grant of any of the reliefs ciaimed? If so, what reliefs are the plaintiffs entitled to?

14. They are answered thus : Issues 1, 2 and 3 are answered in the affirmative. Issue 4. The interest acquired by the defendant was that of limited owner. She was the stridhone heir of her mother and she acquired no absolute right to the property in suit. Issue 5. The plaintiffs at the opening gave up any case of fraud. Issue 6. The plaintiffs are entitled to an injunction restraining the defendant from alienating the promissory note. The suit is decreed with costs. The defendant, her servants and agents are hereby restrained from alienating the 3 per cent. Government Promissory Note No. 109681 of 1896/7, of the face value of Rs. 2,30,000 or of disposing of it in any manner whatsoever. The defendant will be entitled to draw the interest accruing on the said promissory note and there is no restriction placed upon her regarding the spending of the interest. I think I should make some provision for enabling the defendant to apply to the Court for permission to dispose of the promissory note on the ground of legal necessity if and when such necessity arises. I do not think that I would be justified in forcing the defendant if legal necessity ever arose to incur the costs of instituting a suit. She should in my opinion be given liberty to apply in the present suit on notice to all the reversioners both immediate and remote, for permission to sell the promissory note when legal necessity arises. I accordingly give her liberty to apply.


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