Skip to content


Bhola Nath Chowdhuri and ors. Vs. Harimani Dasi and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal214,53Ind.Cas.42
AppellantBhola Nath Chowdhuri and ors.
RespondentHarimani Dasi and anr.
Cases ReferredDebt Prosad Ohowdhry v. Golap Bhagat
Excerpt:
execution of decree - hindu law--widow, estate of, sold in execution of decree--purchaser, estate taken by--claim to absolute estate--burden of proof--sale of widow's estate and reversioner's interest jointly, effect of. - .....of jadumoni. the learned district judge has held that there is nothing to show that it was the widow's estate that was sold, and inasmuch as the sale took place 60 years ago, the plaintiffs are barred. the only document of title which has been produced is exhibit d, which shows that the widow's right, title and interest only was sold and nothing more no doubt it was held in jugul' kishore v. jotendro mohun tagore 10 c. 985; 11 [. a. 66; 8 ind. jur. 455; 4 sar. p. c. j. 553; 5 ind dec. (n. s.) 657 (p. 0.). that it was necessary to look into the decree and the nature of the suit to ascertain what was really sold in execution of the decree. these documents are not forthcoming now. but it is clearly upon the person asserting an absolute estate. having purchased (he right, title and.....
Judgment:

1. This is a suit by reversioners. It relates to two sets of properties which originally belonged to one Krishnahari Roy. He died leaving a widow named Jadumoni. The plaintiffs are the representatives of the reversioners. Jadumoni died in 1319 B. S. Schedule (kha) related to five plots of land. The plaintiffs' claim as regards plots Nos. 3 and 4 was given up by them and plots Nos. 1, 2 and 5 are to be dealt with.

2. These plots Nos. 1, 2 and 5 were sold at Court sale. It appears from the written statement that plots Nos. 1 and 2 were purchased by Rameswar in the name of his brother in-law Nityananda and plot No. 5 was purchased by the Burdwan Raj at an auction sale on the 21st Baisak 1264. The Maharaja sold that plot to Rameswar on the 18th Chait 1282. Rameswar made a gift of it to his daughter defendant No. 1 on 10th Kartick 1284 and she is in present possession thereof. Both the Courts below have treated the plaintiffs' claim in respect of these plots as barred by limitation. They held that the present law of limitation is not applicable, but the sale having taken place before 1871, the plaintiffs are barred as 12 years had elapsed from the date of sale.

3. The appellants contend that their cause of action was not upon the sale, but upon the death of the widow and they refer to Exhibit D, which relates to plot No. 5 as showing that what was sold was the right, title and interest of the judgment debtor, namely of Jadumoni. The learned District Judge has held that there is nothing to show that it was the widow's estate that was sold, and inasmuch as the sale took place 60 years ago, the plaintiffs are barred. The only document of title which has been produced is Exhibit D, which shows that the widow's right, title and interest only was sold and nothing more No doubt it was held in Jugul' Kishore v. Jotendro Mohun Tagore 10 C. 985; 11 [. A. 66; 8 Ind. Jur. 455; 4 Sar. P. C. J. 553; 5 Ind Dec. (n. s.) 657 (P. 0.). that it was necessary to look into the decree and the nature of the suit to ascertain what was really sold in execution of the decree. These documents are not forthcoming now. But it is clearly upon the person asserting an absolute estate. having purchased (he right, title and interest of a Hindu widow as shown by the sale certificate to show that something more has passed to him.

4. In the absence of other materials, therefore, we do not think that the learned Judge was right in throwing upon the plaintiffs the Burden of proving that an absolute estate had not passed. It was laid down as early as the case of Nobin Chunder Chucker-butty v. Issur Chunder Chuokerbutty 9 W. R. 505; B. L. R. Sup. Vol. 1008 (F. B.). that only when the estate of the husband was sold or where possession was taken from the widow adversely that a suit not instituted within 12 years would be considered as barred even as against the reversioners. But this particular case is excepted. We have also referred to the sale-proclamation Exhibit F2, which contains nothing more than the name of the Maharaja as decree holder and the name Jadamoni as the judgment-debtor.

3. We think, therefore, that the plaintiffs were in time in instituting the suit so far as plot No. 5 is concerned. It is admitted that the same sale upon the same decree governs the other two plots, namely, Nos. 1 and 2, although no documents are forthcoming which relate to them. The fact of the purchase at that time from the Hindu widow who held the estate as such, shows that nothing more than a widow's estate passed.

4. We are asked, having regard to the way in which the learned Judge treated this matter in the Appellate Court, to remand this case for further evidence. There is no indication whatever that any further evidence is or can be forthcoming. The whole of the case of defendant No. 1 is set out in paragraph 15 of her written statement. We do not think that this is a fit case for remand on this point.

5. The appeal, therefore, so far as plots Nos. 1, 2 and 5 of Schedule (kha) are concerned is allowed.

6. After the sale of these properties what remained to the widow were the properties mentioned in Schedule (ka). She purported to deal with them in 1891. It was an alienation in which the then reversioner Rameswar joined, the alienation being in favour of Rameswar's daughter. It purports to be a conveyance by which the widow was selling her widow's estate and the reversioner his reversionary interest, that is to say, both of them joined in the conveyance in favour of the reversioner's daughter. It has been held in Nobokishore Sarma v. Hari Nath Sarma 10 C.1102; 5 Ind, Dec. (n. s.) 737. that such a sale is good and operative. This case has been dealt with in Debt Prosad Ohowdhry v. Golap Bhagat 19 Ind. Cas. 273; 17 C. W. N. 701; 17 C. L. J. 499; 40 C. 721. Sir Lawrence Jenkins, C. J., held that the decision of that case was not assailable and the validity of the sale depended upon the whole of the estate having been alienated with the consent of the reversioner. The learned District Judge has found that Jadumoni parted with all her properties by that document and that the next reversioner joined with her at that time. We think he was quite right in applying the principle laid down in the case of Debi Prasad chowdhry v. Golap Bhagat 19 Ind. Cas. 273; 17 C. W. N. 701; 17 C. L. J. 499; 40 C. 721., and we uphold his decision so far as the properties in Schedule {ka) are concerned.

5. Each party will bear his own costs throughout.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //