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Sm. Kamalini Ghose Choudhurani and anr. Vs. Himangshu Bhushan Ghose and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 273 of 1947
Reported inAIR1956Cal211
ActsHindu Law; ;Contract Act, 1872 - Section 196; ;Transfer of Property Act, 1882 - Section 35
AppellantSm. Kamalini Ghose Choudhurani and anr.
RespondentHimangshu Bhushan Ghose and ors.
Appellant AdvocateApurbadhan Mukherjee and ;Kshitindra Kumar Mitter, Advs.
Respondent AdvocateNalin Chandra Banerjee and ;Dhruba Kumar Mukherjee, Advs.
Cases ReferredDijoy Gopal v. Srimati
- .....suit, so far the disputed sale emanated from her. he, however, decreed the suit in regard to the sale by charubala (defendant 3) in favour of the contesting defendants 1 and 2 upon the view 'inter alia' that the defence case of justifying causes to support the absolute sale by charubala, who had admittedly a 'widow's interest', had not been proved and that the other defence pleas of estoppel and ratification were also unacceptable. against this part of the decree, the contesting defendants 1 and 2 have preferred the present appeal. the plaintiff has accepted the trial court's decision.7. the appeal came up before us on a previous occasion & as we felt some doubts about the fairness of the bargain, we deemed it necessary to have a proper valuation of the suit properties at the time of.....

P.N. Mookerjee, J.

1. Six brothers Manmatha Nath Ghose, Promotha Nath Ghose, Sitikantha Ghose, Sudhangsu Bhusan Ghose, Himangshu Bhusan Ghose and Haridas Ghose owned in equal shares, each having an undivided one-sixth, several properties (including their residential house) at Barnia.

In course of time, Pramatha, Sitikantha, Manmatha and Sudhangsu died, leaving respectively widow Charubala, widow Mrinalini, son Kaliprasanna and widow Unmadini and sons Biswanath, Debabrata, Subrata and Satinath, as their heirs and legal representatives, who, along with the two surviving co-sharers, Himangshu & Haridas, became entitled to the said properties, each branch having an undivided one-sixth share.

2. On 18th Sraban 1351 B.S., corresponding to 3-8-1944 the abovenamed heirs of Pramatha, Sitikantha, Manmatha and Sudhangshu sold their undivided one-sixth shares, totalling four-sixths or two-thirds, in the several properties, described in Schedule (Ka) of the present plaint and belonging to the above family, to the present defendants 1 and 2, Sm. Kamalini Ghosh Chowdhurani and Sm. Bani Ghosh Chowdhurani, for a total price of Rs. 7,999/.

The sale purported to be an absolute sale and, therefore, the surviving original co-sharers, Himangshu and Haridas, who were at the time the immediate presumptive reversioners, brought the present suit on 13-9-1944, for 'inter alia' a declaration that the above sale of the disputed properties by Charubala and Mrinalini (who were defendants 3 and 4 in the suit) to Kamalini and Bani (defendants 1 and 2) was void after the lifetime of the said vendors (defendants 3 and 4).

In the suit, the other vendors, namely, the heirs of Manmatha and Sudhangsu, whose names have been given above, were made 'Pro forma' defendants 5 to 10 and there was also a prayer in the plaint for a declaration that, save and except the life interest of the two ladies Charubala and Mrinalini (defendants 3 and 4), no other or additional interest had passed to the vendees (defendants 1 and 2) under the above Kobala.

It appears, however, on a reading of the entire plaint, that the said prayer, though couched in very wide language, was really limited to a declaration as regards the shares of the two ladies (defendants 3 and 4) only and did not embrace a challenge as regards the other shares sold.

That was the scope of the suit, as understood by the parties both here and in the Court below, and, by the above lines, we have merely clarified matters to prevent any possible misunderstanding. The second plaintiff Haridas died while the suit was pending in the trial Court and his name was expunged by the Court's order, dated 2-1-1945, and the names of his substituted heirs also were subsequently expunged by order, dated 9-2-1945.

This was, apparently, upon the view that the suit was a representative suit on behalf of all the reversioners and the presence of plaintiff 1 Himangshu alone was sufficient for its purpose.

3. The plaintiff's case was that Charubala and Mrinalini had no more than 'widow's estates' in the suit properties and the disputed sales had not the necessary supporting legal necessity or 'bona fide' enquiry, as required by the relevant Hindu Law to make them effective beyond the lives of the two widows.

There were also allegations of fraud and undue influence against the first vendee's husband Harinarayan Ghosh Choudhury and the recitals of legal necessity and the like in the disputed Kobala were characterised as false.

4. The defence of the contesting defendants 1 and 2 was 'inter alia' a claim of absolute interest, so far as Mrinalini was concerned, on the strength of her husband's will, and denial of the plaint allegations of fraud and undue influence and absence of legal necessity or 'bona fide' enquiry and also a positive assertion of justifying causes in regard to the disputed sales. The defence also raised pleas of estoppel and ratification on the plaintiff's part.

5. Charubala and Mrinalini and also Kali Prasanna and Biswanath deposed in support of the defence. The defence also examined Harinarayan. The plaintiff Himangshu examined himself and some officers who were in actual charge of the suit properties at different periods from the time of Promotha who was the first to die amongst the plaintiff's brothers.

Sitikantha's will was duly proved and it has been marked as Ex. J in the present case and there is no dispute now that, under it, his widow Mrinalini (defendant 4) got an absolute interest in Sitikantha's share of the disputed properties.

6. The learned Subordinate Judge found that Mrinalini (defendant 4) had an absolute interest in the properties, conveyed by her by the disputed Kobala, and accordingly, he dismissed the plaintiff's suit, so far the disputed sale emanated from her. He, however, decreed the suit in regard to the sale by Charubala (defendant 3) in favour of the contesting defendants 1 and 2 upon the view 'inter alia' that the defence case of Justifying causes to support the absolute sale by Charubala, who had admittedly a 'widow's interest', had not been proved and that the other defence pleas of estoppel and ratification were also unacceptable. Against this part of the decree, the contesting defendants 1 and 2 have preferred the present appeal. The plaintiff has accepted the trial Court's decision.

7. The appeal came up before us on a previous occasion & as we felt some doubts about the fairness of the bargain, we deemed it necessary to have a proper valuation of the suit properties at the time of the disputed sale for judging, along with other relevant circumstances, whether Charubala's sale was or was not an improvident transaction.

We, accordingly, sent down an appropriate additional issue to the lower Court and we have now before us also the additional evidence on this new issue and the learned Subordinate Judge's finding upon the same.

8. On the question of valuation, the evidence, adduced by the two parties, is highly discrepant but, taking a broad view of the said evidence, it may fairly be concluded that the value or the entire properties, of which two-thirds only were sold by the disputed Kobala, was roughly in the neighbourhood of Rs. 30,000/-. On that calculation, the value of one-sixth would be about Rs. 5,000/-. It was sold for about Rs. 2,000/-.

But, in judging the fairness of this price and the nature of the transaction, we have to bear in mind that it was sale of an undivided share, the vendor was apparently not in possession and had practically been ousted by the plaintiff Himangshu, and, last but not the least, that, for the same price and simultaneously by the very same Kobala, some of the absolute owners, including adult male co-sharers, sold similar shares of the above properties. In these circumstances, we are not inclined to hold that Charubala's transaction was improvident.

9. The next question that arises is whether the defence case of legal necessity and 'bona fide' enquiry has been rightly rejected by the learned Subordinate Judge. The learned Judge has found that Himangshu was in actual charge and management of the disputed properties from after Pramatha's death (which took place at or about the year 1930-31) up to 1344 B.S. in the first instance, and, then again, from Sitikantha's death (which took place in 1347 B.S.) onwards.

It is also the finding of the learned Judge that Charubala obtained nothing from the properties from the time of Sitikantha's death in 1347 B.S. The learned Subordinate Judge, however, was apparently of the view that, for the Intervening period, namely, 1344-47 B.S., Sitikantha was in management and that, during this period, and, also during the prior period, Charubala used to get realisations from the disputed properties which were more than sufficient for her maintenance and other expenses and must have had enabled her to save sufficient money for future years.

We are unable to accept this last finding of the learned Subordinate Judge. The evidence has been discussed by the learned Subordinate Judge in some detail and, in our opinion, that evidence amply shows that the learned Judge's findings about the persons in management during the different periods are correct but we do not feel persuaded to agree with him in holding that Charubala must have had accumulated sufficient funds for her future maintenance out of the realisations, obtained by her up to about 1347 B.S.

Having scanned the evidence with as much care as possible, we have been unable to discover any sufficient basis for such a finding. At the same time, however, Charubala's position at the time, as disclosed in the evidence, does not make out a case of legal necessity for an out and out sale of the entire properties and, as, on this point, the onus is undoubtedly on the defendants, they cannot succeed on the materials before us.

It is practically an admitted fact that, on the same day, namely, 3-8-1944, the superior interest of the disputed properties was also sold by the same vendors (including Charubala) to the husbands of the present vendees defendants 1 and 2 for Rs. 3,000/- (vide plaint and deposition of Charubala). That brought in Rs. 750/- to Charubala.

Practically, the same parties were involved in the two transactions and nothing has been placed before the Court to explain why, in the circumstances of this case, the present sale (Ex. D) was necessary on Charubala's part. We are not unmindful of the observations of the Judicial Committee in the cases of 'Ramsumran Prasad v. Mt. Shyam Kumari' AIR 1922 PC 356 (A) and 'Medai Dalavoi Thirumalaiyappa Mudaliar v. Nainar Tevan' AIR 1922 PC 307 (B) or of this Court in the case of 'Tara Prosad v. Madhusudan' AIR 1926 Cal 283 (C), to which, in particular our attention was drawn by Mr. Mookerjee but we are not satisfied that the present case comes within the purview or protection of those authorities.

The widow has certainly a duty to see that the reversion is not unnecessarily lost and; although a particular reversioner may be guilty of wrongful acts, that, by itself, would not justify a sale of the entire estate.

We are also in full agreement with the learned Subordinate Judge in his finding that Charubala's story of Gaya pilgrimage has not been substantiated and that the medical expenses, if any, for the alleged treatment of her eyes were not much and were too insignificant to prove the case of justifying causes and support or uphold the disputed sale. We hold, therefore, that the defence case of justifying legal necessity for Charubala's sale has been rightly rejected by the learned Subordinate Judge and we affirm his finding on this point.

10. There remains now the question of estoppel or ratification. Even apart from the fact that the names of Haridas and his heirs have been expunged from the present record, there is also nothing before us to justify any finding of estoppel or ratification, so far as Haridas is concerned. We are thus left only with the case of estoppel or ratification as against Himangshu. In matters like the present, ratification is not a very happy or appropriate term (vide 'Bejoy Gopal v. Girindra Nath' 13 Cal WN 201 at p. 209 (D) ).

By affirming or accepting the validity of the transaction, made by the limited owner, a particular reversioner may preclude himself from challenging the same. This is loosely called ratification. Strictly speaking, however, it is a rule of election (vide 'Modhu Sudan Singh v. Rooke' 24 Ind App 164 (PC) at pp. 168-9 (E); See also 'Dijoy Gopal v. Srimati' 34 Ind App 87 (PC) at pp. 91-2 (P). and 13 Cal WN 201 at p. 209 (D).

In the present case the whole argument of election or ratification is based on the letter Ex. A which was written by Himangshu to Harinarayan on 16-8-1944, that is, just thirteen days after the disputed Kobala (Ex. D). On this point, however, that letter is rather of an ambiguous character and we are not prepared to hold simply on the basis of the said letter that there was sufficient affirmation by Himangshu of the validity of the disputed transaction so as to preclude him from challenging the same. The learned Sub-ordinate Judge was, therefore, right in rejecting the defence case of 'ratification'.

11. On the question of estoppel, however, we do not share the views of the learned Subordinate Judge. This case was sufficiently raised in para 6 of the Written Statement. That was noticed by the learned Judge himself, and, therefore, his remarks in a later part of his Judgment that no sufficient indication of this plea of the defendants was given in the Written Statement are not quite correct.

We think further that, in the light of the said letter (Ex. A), Harinarayan's evidence on this point should be accepted in preference to Himangshu's. The latter's denial of any previous knowledge of the intended sale by defendant 3 to Harinarayan or, for the matter of that, to defendants 1 and 2, cannot be believed in the face of this letter (Ex. A) and we are inclined to hold, in the circumstances of this case, that, but for Himangshu's assurance and without his consent or assent, Harinarayan, or, for the matter of that, defendants 1 and 2, would not have purchased Charubala's interest.

Himangshu, therefore in his personal or individual capacity is estopped from challenging the said transaction and, to this extent, the decision of the learned Subordinate Judge will be modified. The suit, however, as we have already said, was brought on behalf of the entire body of reversioners, including Himangshu himself, and, accordingly, the decree of the learned Subordinate Judge will stand subject to this modification that, so far as Himangshu personally or in his individual capacity is concerned, he is declared estopped from challenging the disputed transaction which will be binding upon him and his heirs.

12. Subject as above, the appeal fails and it is dismissed. There will be no order for costs in this Court. The plaintiff, however, will be entitled to his costs in the trial Court.

R.P. Mookerjee, J.

13. I agree.

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