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Gohali Saha and ors. Vs. Debendra Nath Mukherjee and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1928Cal285
AppellantGohali Saha and ors.
RespondentDebendra Nath Mukherjee and anr.
Cases ReferredBeni Pershad v. Puran Chand
Excerpt:
- .....property. there is no dispute that the property was originally the self-acquired property of luski's father bangali. it appears that bangali saha bequeathed this property to his widow methrani dasi by executing a will in her favour and methrani in her turn made a bequest of it to luski shaha by executing another will in favour of luski. the learned advocate for the appellants contended that the property when it came to luski became his ancestral property inasmuch as it had been at one time the property of his father bangali : and in support of this contention he cited the case of muddun gopal v. ram buksh 6 w.r. 71. this case however does not appear to me to go very much in support of the learned advocate's contention. all that was held in that 6 w.r. case was that landed property.....
Judgment:

Mallik, J.

1. This appeal arises out of a suit for recovery of the plaintiffs' dues amounting to Rs. 1,110-8-0 on a mortgage bond executed by the father of the defendants, one Luski Shaha, in favour of the plaintiffs. The defence was that the defendants and their father were members of a joint Hindu family governed by the Mitakshara law, that the mortgaged property was the paternal property of the defendants' father and the defendants had a vested right therein, and that Luski Shaha, therefore had no right to create a mortgage alone on the property in excess of his own share. The trial Judge held that the mortgaged property was the paternal property of Laski and that the defendants had a vested right therein. He held also that there was an antecedent debt of Rs. 335 which has paid off with the consideration money received by Luski for the bond in suit and that the mortgaged property was liable for satisfaction of that amount only; and on these findings the trial Judge decreed the plaintiff's suit in part. On appeal by the plaintiffs the learned District Judge came to the conclusion that the mortgaged property was not ancestral, but the personal property of Luski and so his sons; the defendants had no vested right therein; and on his finding the lower appellate Court gave a full decree to the plaintiffs. The defendants have appealed to this Court.

2. There were, two points taken before us : firstly it was said that the lower appellate Court was wrong in giving a full decree to the plaintiffs as by doing that it allowed to the plaintiff more than what the plaintiffs had asked for in their appeal; and secondly, it was contended that the learned District Judge was in error when he came to the conclusion that the mortgaged property was not ancestral but only the personal property of Luski.

3. The first point, which is a short one, can be disposed of quickly. The contention of the learned advocate on this point was that when the lower appellate Court gave a full decree to the plaintiffs it allowed them by that decree Rs. 775-8-0 (Rs. 1110-8-0, the total amount claimed, minus; Rs. 335, the amount of the antecedent debt), whereas the plaintiffs had valued their appeal at Rs. 559-2-0 only. This contention of the learned advocate was obviously based on misconception and a misreading of the order passed by the trial Judge. The trial Judge, it is true, found that the amount of the antecedent debt was Rs. 335 only. But in the decree that he made, in favour of the plaintiffs he allowed the plaintiffs not only Rs. 335, but the interest as well on that amount calculated at the rate in the bond. If the total of Rs. 335 and the interest thus calculated would be deducted from the total amount claimed, Rs. 1,110-8-0, there would (sic) a balance of Rs. 559-2-0, the amount at which the plaintiffs had valued their appeal.

4. The second contention is much more important and practically the whole controversy before us has been over it and over the question whether the property was ancestral or Luski's personal property. There is no dispute that the property was originally the self-acquired property of Luski's father Bangali. It appears that Bangali Saha bequeathed this property to his widow Methrani Dasi by executing a will in her favour and Methrani in her turn made a bequest of it to Luski Shaha by executing another will in favour of Luski. The learned advocate for the appellants contended that the property when it came to Luski became his ancestral property inasmuch as it had been at one time the property of his father Bangali : and in support of this contention he cited the case of Muddun Gopal v. Ram Buksh 6 W.R. 71. This case however does not appear to me to go very much in support of the learned Advocate's contention. All that was held in that 6 W.R. case was that landed property acquired by a Mitakshara father and distributed by him amongst his sons does not by such gift become the self-acquired property of the sons. It does not lay down that a property which goes to a Mitakshara son becomes his ancestral property simply for the reason that it had at one time belonged to his father, no matter how the property goes to the son, whether direct from the father or after having passed through several hands in the interval. The learned advocate contended that the deviation from a direct descent of the property from Bangali to Luski in the present case was of no consequence and for that purpose he placed reliance upon the case of Beni Pershad v. Puran Chand [1896] 23 Cal. 262. But that case is clearly distinguishable from the case before us. In that case a Hindu governed by the Mitakshara law assigned an ancestral mauza to his widow in lieu of her maintenance. After the death of the widow the property devolved on the grandsons and in a subsequent litigation over the property it was held that the mauza retained the character of ancestral property during the lifetime of the widow. But in that case the interest of the widow that was created by the assignment in her favour, was of a temporary nature and only a limited one, whereas in the present case there was no limitation of any kind imposed on the interest which Methrani acquired under the will and the will which Bangali executed in Methrani's favour made Methrani Dasi the absolute owner of the property. The authorities which the learned advocate cited before us do not, therefore, in my opinion go in support of the contention urged by him. The question whether a property is ancestral or self-acquired has been very well stated in West and Buhler Book 2, Introduction, p. 19:

Ancestral property, as amongst descendants comprises property transmitted in the direct male heir from a common ancestor, and acceretions to such property made with the aid of the inherited ancestral estate. Thus in the case of a father, head of a family, property inherited from his father or grandfather is ancestral property, however acquired by it previous possessors. On the other hand property inherited by him from females, brother or collaterals, or directly from a great-grand father, appears to be subject to the same rules as if self-acquired. Ancestral property, in fact may be said to be co-extensive with the objects of apratibandha daya or unobstructed inheritance.

5. This view agrees with the view arrived at by Jagannath and it is the view of Jagannath that represents the Bengal opinion. In the present case the property before it came to Luski, had, it is true, at one time belonged to his father Bangali. But it was not transmitted to Luski in a direct line. It came to him not even by inheritance from a female, his mother, but by a bequest made by her acid it was by no means apratibandha daya or unobstructed inheritance inasmuch as it could not have come to Luski at all had there been no will executed by Methrani Dasi in Luski's favour. I am, therefore, of opinion that the learned District Judge was right when he held that the property was not ancestral, but the personal property of Laski Saha.

6. In view of the aforesaid observation the appeal must fail. It is accordingly dismissed with costs.

Suhrawardy, J.

7. I agree.


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