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Gurupada Haldar Vs. Upendra Nath Mukerjee - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1930Cal701,129Ind.Cas.365
AppellantGurupada Haldar
RespondentUpendra Nath Mukerjee
Cases ReferredBhanga Chandra Dhur Biswas v. Jagat Kishore Chowdhury A.I.R.
Excerpt:
- .....that 1 biswamoyee obtained only a hindu widow's interest and not absolute interest in the six annas share given to her for maintenance.2. the judgment of the court shows that it was argued that the point on which the decision of the right of the plaintiff must rest was with regard to no. 1 of the effect of the decree in suit 1868 brought by nitambini against biswamoyi. nitambini brought the suit against biswamoyi on the ground that the latter had dispossessed her. in the decree she got ten annas share and her suit regarding the remaining six annas share was dismissed. the question was whether the plaintiff was entitled in spite of that decree to recover possession of the property as the reversionary heir of pran krishna, the husband of nitambini. it was pointed out that according to.....
Judgment:

S.K. Ghose, J.

1. These two applications are for review of judgment which wag passed by this Court on 8th August 1929 in appeals from appellate decrees No. 2306 of 1927 and No. 612 of 1928. The judgment of this Court was delivered by my learned brother B.B. Ghose, J., and I was a party to it. It is not necessary to recapitulate the facts. In the application with reference to second appeal No. 2306 of 1927 the Rule was issued on ground 1 of the petition which is to this effect:

For that there is an error apparent on the face of the record inasmuch as the learned Judges have omitted to consider the effect of the subsequent litigation between Biswamoyee and Nitambini which clearly showed that 1 Biswamoyee obtained only a Hindu widow's interest and not absolute interest in the six annas share given to her for maintenance.

2. The judgment of the Court shows that it was argued that the point on which the decision of the right of the plaintiff must rest was with regard to No. 1 of the effect of the decree in suit 1868 brought by Nitambini against Biswamoyi. Nitambini brought the suit against Biswamoyi on the ground that the latter had dispossessed her. In the decree she got ten annas share and her suit regarding the remaining six annas share was dismissed. The question was whether the plaintiff was entitled in spite of that decree to recover possession of the property as the reversionary heir of Pran Krishna, the husband of Nitambini. It was pointed out that according to 'the report of the arbitrator, Nitambini was giving up her interest' in six annas share of the property because Biswamoyi was entitled to 'maintenance out of her son's estate. But the decree was made to the effect that Nitambini's suit; with regard to six annas interest was dismissed. It was held that the effect of the decree was that Nitambini had relinquished six annas share, whatever the reason might have been, and as a matter of compromise in the suit and the compromise was binding on the reversioner. In this view it was held that the decree in Suit No. 1 of 1868 was binding on the plaintiff. It is now contended that we were in error in not referring to the decision in another suit, namely, Suit No. 74 of 1869 which Biswamoyi brought to recover her right of residence in her son's dwelling house1 as against Nitambinj. In that suit the defence of Nitambini was that as Biswarnoyi had already been given six annas share in the previous suit she was not entitled to the right of residence as claimed by her. It is conterfded that in this second suit it was held that Biswamoyi got six annas share only for her maintenance and this decision is binding as res judicata in the present suit. It is true that there is no reference to the result of this suit in the judgment of this Court. The learned advocate for the plaintiff-appellant, who is the petitioner before me states that ha did argue the point and that he did place some portions of the judgment Ex. 2 before the Court. The learned advocate on the other side has no recollection on the subject. In any case it seems to me that the argument was not put in the forefront, otherwise it could not have escaped our notice. It is further noteworthy that the point does not seem to have impressed the parties in either of the Courts below and it was not raised then. However, I have looked into the matter myself and have examined the judgment Ex. 2. It appears from that judgment that the defence of Nitambini was that, as Biswamoyee had obtained a decree in respect of six annas share of other property, she was entitled to bring the present suit. Upon that two issues were raised and issue (1) is to this effect:

For the reason stated by the plaintiff, is she entitled to a right of residence in the house of the defendant or has she lost the right on account of the previous suit?

3. In the course of the judgment' it is stated that by the decision of the previous suit the plaintiff obtained a small share of the property for her maintenance and she did not lose thereby her right of residence. It does not seem to me that in this there is a decision of the question as to whether Nitambini had parted with the absolute interest on only her life-interest. It was not necessary for the decision of the suit of 1869 that such a question should be raised and decided, for even if the absolute interest had been transferred, still it was open to Biawamoyi to make a claim regarding her right of residence in her son's house. I also do not find, either in the issue or in any part of the judgment, that a question was raised and decided that the six annas share of the property, which was decreed in favour of Biswamoyee, related to the absolute interest in the property and not to Nitambini's life-interest. In this view it seems to ma that there is no force in this ground for review.

4. Then, as regards the application for review in Second Appeal No. 512 of 1928 the rule was issued on ground 1 of the application which is in these terms:

For that the learned Judge erred in holding that the kabala raises a presumption of legal necessity and the racitals tharein are evidence of legal necessity.

5. The judgment shows that the Court was impressed by this that the document of transfer by Nitambini in favour of Kenaram itself recites the existence of legal necessity and further that the document was dated 1877 and both the parties to it were dead. Thereupon the judgment goes on to state that the presumption as held by the Privy Council arises that there was legal necessity and unless it was rebutted, the Court was entitled to act upon it. It is contended that this goes beyond the decision of the Privy Council in the case of Bhanga Chandra Dhur Biswas v. Jagat Kishore Chowdhury A.I.R. 1916 P.C. 110. It is pointed out that what was held in that case was that when proof of actual enquiry became impossible the recital coupled with circumstances would be sufficient evidence to support the deed. Even if our view were inconsistent with this authority an erroneous view of evidence or of law would be no ground for review. But as a matter of fact I find in the judgment that a reference is made to the circumstances that Nitambini had failed to obtain possession of the property and further that Kenaram also found it difficult to take possession as against Biswamoyee. It cannot be said therefore that the circumstances were not considered. In this view it seems to me that the grounds urged might properly be good grounds of appeal but they would not support the application for review.

6. The Rules are therefore discharged with one set of costs. The hearing fee is assessed at three gold mohurs.


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