Skip to content


Ekkari Ghosh Vs. Chittarekha Ghoshani - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 497 of 1953
Judge
Reported inAIR1958Cal447,62CWN209
ActsHindu Law; ;Evidence Act, 1872 - Section 115; ;Limitation Act, 1908 - Schedule - Articles 142 and 144
AppellantEkkari Ghosh
RespondentChittarekha Ghoshani
Appellant AdvocateHari Prosanna Mukherjee and ;Satya Prosad Banerjee, Advs.
Respondent AdvocateLala Hemanta Kumar and ;Sudhir Kumar Dutta, Advs.
DispositionAppeal dismissed
Cases ReferredDhiyan Singh v. Jugal Kishore
Excerpt:
- .....the life time of pratima ghoshani and also of manada and maganbala. he left him surviving his widow nagendrabala and a daughter, chittarekha by name. it appears that chittarekha (the defendant respondent) is a childless widow. not being daughter likely to have a son (sambhabita -- putra kanya), she was not entitled to inherit her father's estate.5. pratima ghoshani died after the death pf kirti chandra ghosh but admittedly before the year 1906.6. manada died without any issue. maganbala died leaving two sons ekkari (plaintiff-appellant) and ram; the latter died a bachelor. the exact dates of death of manada and maganbala do not appear from the records but, it was admitted before us, that they died about a quarter of a century prior to me institution of the suit), out of which this.....
Judgment:

B.N. Banerjee, J.

1. This is an appeal by the plaintiff and is directed against an appellate decree dismissing plaintiffs claim for declaration of title to certain properties and recovery of possession there of from the defendant.

2. The properties in suit originally belonged to one Iswar Ghosh, who died sometime in the year 1304 B. S. leaving a Will dated 22nd Bhadra, 1300 B. S. Iswar Ghosh had no son. He was survived by his widow Pratima Ghoshani, two daughters Manada and Magan-bala and a grandson, Kirti Chandra Ghosh, by his predeceased daughter Kulada.

3. Under the Will (Exhibit B), Iswar Ghosh bequeathed the entirety of his Bastu (residential house) and Gohalbari (cowshed) and mostly twelve annas share in his other properties to Kirti Chandra Ghosh. The remaining share in his other properties was bequeathed to his two daughters Manada and Maganbala jointly. So far as the widow Pratima Ghoshani was concerned, the Will provided that Kirti would have to maintain her till her death and the three legatees would have to contribute to her funeral expenses, according to their shares. During her life time Pratima Ghoshani was' invested with control over the properties, which were the subject matter of the testamentary disposition but she was not given any power of alienation.

4. Kirti Ghosh died sometime in the year 1307 B. S., during the life time of Pratima Ghoshani and also of Manada and Maganbala. He left him surviving his widow Nagendrabala and a daughter, Chittarekha by name. It appears that Chittarekha (the defendant respondent) is a childless widow. Not being daughter likely to have a son (SAMBHABITA -- PUTRA KANYA), she was not entitled to inherit her father's estate.

5. Pratima Ghoshani died after the death pf Kirti Chandra Ghosh but admittedly before the year 1906.

6. Manada died without any issue. Maganbala died leaving two sons Ekkari (Plaintiff-appellant) and Ram; the latter died a bachelor. The exact dates of death of Manada and Maganbala do not appear from the records but, it was admitted before us, that they died about a quarter of a century prior to me institution of the suit), out of which this appeal arises.

7. In the year 1906, Nagendrabala applied for letters of administration with a copy of the Will ot Iswar Ghcsh annexed. The application was contested by Manada and Maganbala on the ground that under the terms of Iswar's Will his widow was to enjoy the properties during her life time and after her death Kirti and the objectors were to have the properties according to shares specified in the Will. Since Kirti had died during the life time of Pratima Ghoshani, he did not get anything under the Will; the reason alleged being that there was no provision in the Will to the effect that if a legatee died before the legacy became effective his heirs would become entitled to the legacy. The petition of objection is Exhibit D.

8. Ultimately, on 2nd April, 1907, there was settlement arrived at between the contesting parties in the proceedings for letters of administration. The compromise petition is Exhibit C. Under the terms of the compromise there was a partition effected between Nagendrabala on the one side and Manada and Maganbala on the other Nagendrabala got seven annas share in the disputed properties, described in schedule 'Ka' partitioned by metes and bounds and the remaining nine annas share, described in schedule 'Kha' , also partitionedby metes and bounds, was allotted to Manada and Maganbala jointly. The compromise also provided that the parties thereto would have absolute rights in the properties respectively .allotted to them.

9. Letters of administration, with a copy of the Will annexed, was granted to Nagendra-'bala, Manada and Maganbala jointly, on 22nd January, 1908. in the following terms :

'Letters of administration, with a copy of the Will annexed, of the property and credits of Iswar Chandra Ghosh .....granfied to (1) Nagendrabala Ghoshani ......

(2) Manada Ghoshani & (3) Magana Ghoshani ........ in terms of the petition of compromise dated 2-4-1907 filed in this case.'

The grant is evidenced by Exhibit B.

10. It is not disputed that Nagendrabala, Manada and Maganbala separately possessed the properties, respectively allotted to them, under the compromise, until their death.

11. Nagendrabala died leaving a Will, dated 14th December, 1946, under which she bequeathed the Properties, she had obtained under the compromise aforesaid, in favour of her only daughter Chittarekha (defendant-respondent) in absolute right. In Probate Case No. 31 of 1950, the aforesaid Will was probated. The grant is evidenced by Exhibit A.

12. Manada and Maganbala, as already stated, predeceased Nagendrabala and then deaths had taken place at least quarter of a century prior to the institution oi' the suit by the plaintiff appellant. On the death of his mother and maternal aunt, the plaintiff appellant came to possess the allotments made 'to Manada and Maganbala, under the compromise (Exhibit C). He did not disturb the state of affairs, as under the compromise, until the suit, out of which the present appeal arises, was filed.

13. Plaintiffs case in substance is that Nagendrabala had only the limited interest of a widow in the properties in suit and was not entitled to make a testamentary bequest in favour of the defendant Chittarekha. The plaintiff asserted that on the death of Nagendrabala, the estate of Kirti devolved on him by succession and he, therefore, claimed declaration of his title to the said estate as also recovery of possession.

14. The defence, in the main, is that in the proceedings for letters of administration there was a bona fide family arrangement effected between the mother of the defendant on the one side and Manada and Maganbala on the other, under which her mother separately got certain properties, equivalent to seven annas share in Iswar Ghosh s estate in absolute right. Her mother was, therefore, entitled to make a bequest to herself (the defendant) under the Will as done in this case.

15. Both the Courts below dismissed the claim made by the plaintiff. The Court of appeal below, inter alia, came to the conclusions hereinafter indicated:

(a) In the letters of administration proceedings there was a bona fide dispute between the parties which was ultimately compromised by a family arrangement.

(b) Under the compromise, Nagendrabala got an allotment made to her in absolute right and was entitled to make a testamentary bequest of the same in favour of the defendant.

(c) The plaintiff also enjoyed the benefits under the family arrangement for a considerable number of years and cannot now be allowed to throw off the arrangement.

16. Mr. Hari Prasanna Mukherjee, on behalf of the appellant, challenged the correctess of the decision of the Courts below and his contentions were three-fold. He argued, in the first place, that assuming that there was a family arrangement effected in 1907, whereby the disputes between Nagendrabala on the one hand and Manada and Maganbala on the other were settled and whereby Nagendrabala got seven annas share in absolute right instead of twelve annas share in limited interest which she otherwise would have got as her husband's heir, the same was not binding on the plaintiff, the reversionary heir, who was no party to the compromise and also was a minor at the material time. The arrangement, if at all effective, was so only during the life time of Nagendrabala and of Manada and Maganbala. The second contention of Mr, Mukherjee was that the compromise was not a bona fide family arrangement at all. The Will of Iswar Ghosh was not contested. Nagendrabala was only to get a life interest as the widow and heir to Kirti, the latter getting an interest under the Will, the arrangement was only :t devise to divide the estate and also to enlarge her limited rights to an absolute right The last contention of Mr. Mukherjee is really his second contention, but looked at from another angle. Mr. Mukherjee argued that Nagendrabala had no independent title to the disputed properties in herself. If Kirti became entitled to get anything under the Will of Iswar, then only would Nagendrabala inherit the estate of Kirti, in life estate. In, other words, there was no competing or antecedent title of some kind of her own asserted by Nagendrabala, in respect of the properties in dispute, which the compromise, alleged to be a family arrangement, acknowledged and defined. Ekkari, the plaintiff, was also not claiming through Nagendrabala. He claimed to be the reversionary heir to Kirti, in his right as the son of Kirti's maternal aunt. In such circumstances, the family arrangement or the compromise between Nagendrabala and Manada and Maganbala would not bind the reversioner.

17. Mr. Hemanta Kumar Lala, appearing for the defendant-respondent, adduced a twofold argument. In the first place, he argued that the incidents of a bona fide family arrangement or alternatively of a compromise entered into for the benefit of the estate, which made such settlement binding on the reversioner, were all present in the instant case. Further and in the alternative he argued that Nagendrabala was in possession of the disputed properties in assertion of her absolute interest since the date of family arrangement in 1907. Such assertion was hostile to the interest of the plaintiff, who claimed reversioner's right. By assertion of hostile title to the disputed property for well over the statutory period, she perfected her title by adverse possession. As such she could make a valid testamentary disposition in respect of such properties.

18. The answer to the first contention of Mr. Mukherjee really depends upon our conclusions on the second and third contentions made by him. Generally speaking, however, a compromise in the nature of a family arrangement Effected by a widow or other limited owner binds the reversioners, though they may not be parties thereto, provided always such arrangement was in bona fide settlement of disputes in respect of the estate. Even if a compromise is not in the nature of family arrangement, a compromise entered into by a limited owner for the benefit of the estate and not for her personal advantage, binds the reversioners, though they may not be parties to the transaction. In either case the fact that the compromise involves an alienation of the estate or conferment of an absolute right on somebody, having a limited interest only, does not affect its validity. Therefore, the real question is whether the transaction of 1907 satisfies either description of compromise, indicated above. If so, the plaintiff reversioner will, undoubtedly, be bound thereby.

19. We propose to deal with the second and third contention of Mr. Mukherjee together. In the proceedings for letters of administration, the objection by Manada and Maganbala was that the bequest in favour of Kirti had failed, because he predeceased Pratima Ghoshani, during the continuance of her life estate. As Kirti's widow and heir Nagendrabala was not entitled to letters of administration with a copy of Is-war's will annexed because she would nave no beneficial interest) in the estate of Iswar. Mr. Mukherjee was right in contending that Nagendrabala 'was not setting up any title in herself apart from as heir to Kirti; and in that capacity she was entitled only to a life estate in the disputed properties. In so far as Manada and Maganbala wanted totally to exclude Kirti from the benefits under the Will, we hold, there was undoubtedly a bona fide dispute. The will of Iswar is not very happily worded. Whether Pratima was given a widow's interest in the estate of Iswar or whether her maintenance was made a charge on the properties bequeathed to Kirti were matters of construction of the Will of Iswar and we are not sure whether two opinions on the point were not possible. We, are not going to interpret the Will of Iswar at this stage; suffice it for the present purpose that a dispute regarding the true and correct interpretation of the Will of Iswar was raised in the letters of administration proceedings and if the objection by Manada and Maganbala had succeeded, Kirti or his heir would get nothing under the Will. That made the dispute a bona fide dispute in respect of the estate and a settlement of such a dispute, bona fide arrived at, would be binding on the reversioner. If the compromise of 1907 had only recognised or acknowledged that Kirti's widow had a beneficial interest, namely, a life estate in the legacy in favour of Kirti, even though Kirti had predeceased Pratima, that would have certainly been a settlement of dispute binding on the plaintiff. But the compromise of 1907 did nothing of the sort; under the compromise or arrangement Nagendrabala got absolute interest in properties equivalent to seven annas share in the estate of Iswar Ghosh, partitioned by metes and bounds. If the right of Kirti under the Will had merely been acknowledged and recognised under the compromise, Nagendrabala would have got the entirety of the residential house and the cowshed and twelve annas share in most of the other properties of Iswar but her interest therein would have been that of a Hindu widow, having only a life interest. Under the compromise she took less properties but greater rights. Such greater rights she had never before asserted. Such rights were conferred on her only by the compromise of 1907. This enlargement of right or title, in the absence of any antecedent claim of competing title in herself, made the compromise of 1907 not binding on the plaintiff reversioner.

20. The law on the point is now settled law, having been decided in a long series of oases and we propose to refer to only some of them.

21. In the case of Rani Mewa Kuwar v. Rani Hulas Kuwar, 1 Ind App 157 at p. 166 (PC) (A), Sir Montague E. Smith observed as follows :--

'The compromise is based on the assumption that there was an antecedent title of some kind in the parties, and the agreement acknowledges and defines what that title is. The claim does not rest on contract only, but upon a title to the land acknowledged and defined by the contract. . . . .'

22. In the case of Khunnilal v. Gobinda Krishna Narain, 38 Ind App 87 at pp. 102-103 (PC) (B), Mr. Ameer Ali, restated the above principles in the following language:--

'The real nature of the compromise is well expressed in a judgment of the High Court of the North West Provinces in 1868 in the suit of Mewa Kunwar against her sister Chhattar Kunwar's husband. The learned Judges say as follows:

'The true character of the transaction appears to us to have been a settlement between the several members of the family of their disputes, each one relinquishing all claim in respect of all property in dispute other than that falling to his share, and recognizing the right of the others as they had previously asserted it to the portion allotted to them respectively. It was in this light, rather than as conferring a new distinct title on each other, that the parties themselves seem to have regarded the arrangement, and we think that it is the duty of the Courts to uphold and give full effect to such an arrangement' : Lalla Oudh Behareo Lall v. Ranee Mewa Koonwer, 3 Agra HCR 82 at p. 84 (C).

Their Lordships have no hesitation in adopting that view. The true test to apply to a transaction which is challenged by me rever-sioners as an alienation not binding on them is, whether the alienee derives title from the holder of the limited interest) or life tenant'.

23. In the case of Mathukumalli Ramayya v. Uppalapati Lakshmayya, 69 Ind App 110 at pp. 114-115 : (AIR 1942 PC 54 at pp 55-56) (D), Sir Madhavan Nair, J. observed as follows :--

'****

Subbarammaya had no rights to the properties except what he derived by the gift made in his favour by Bangaramma. Since it has not been shown that Subbarammaya had any competing title of his own in respect of the properties in dispute, there can bo no basis in their Lordships' opinion for a valid family settlement between the parties which would bind the reversion. In 38 Ind App 87 (PC) (B), their Lordships pointed out that 'the true test to apply to a transaction which is challenged by the reversioners as an alienation not binding on them is, whether the alienee derives title from the holder of the limited interest or Me tenant'. In the present case it is clear that what title Subbarammaya had to the properties was acquired under the compromise from the widow, since he had no antecedent title of his own to them'.

24. On the question as to whether a limited owner can enlarge her title or take any per-sonal benefit under compromise of a bona fide dispute or by family arrangement, so as to bind the reversioner, reference may be made to thefollowing passage from the decision in Mahen-dra Nath v. Shamsunnessa 21 Cal LJ 157 at p. 163 : (AIR 1915 Cal 629) IE) :--

'a compromise amounting to a bona fide settlement of disputes will bind the reversioner quite as much as a decree on contest; in other words, that principle .. .... .. is not limitedto decrees in suit contested to the end. This rule is subject to the qualification that the compromise was made bona fide for the benefit of the estate and not for the personal advantage of the limited owner'. (Per Mookerjee, J.)'.

The above doctrine was approved by Lord Phil-limore in the case of Ramsumran Prosad v. Shyarnkumari LR 49 Ind App 342 : (AIR 1922 PC 356) (F) .

25. In a case reported in Chimanlal v. Natvarlal, AIR 1935 Bom 131 at P. 133 (G), Macklin, J. in delivering the judgment of the Bench, observed* as follows :--

'the effect of the compromise was not in any way to enlarge the estate or to benefit the estate; it's only effect was to increase the powers of the widows themselves adversely to the re-versipners. It cannot, therefore, be recognised as binding on the reversioner'.

26. Relying on the aforesaid decision, we uphold the second and third contentions of Mr. Mookerjee. We find, on the materials to which reference has, hereinbefore, been made, that never before the compromise of 1907, Nagen-drabala claimed any absolute or competing title of her own in respect of the properties in dispute. There was no claim of antecedent title, in absolute right, in Nagendrabala involved in the proceedings for letters of administration, with a copy of the Will of Iswar annexed, which the compromise acknowledged and defined. For reasons best known to the parties, the compromise of 1907, conferred on Nagendrabala an absolute title in a smaller estate. Whatever the reasons may have been they were certainly not for the benefit of the estate. The estate which Kirti was to get under the Will, was sacrificed, Nagendrabala agreeing to take a lesser estate. By taking greater rights in a lesser estate, Nagendrabala benefited personally, because her powers were increased adversely to the plaintiff reversioner. Such a compromise, in our opinion, was not binding on the plaintiff.

27. Mr. Lala tried to escape the consequences by arguing that even though Nagendrabala had not got absolute title under the compromise of 1907, she remained in possession of the disputed properties in assertion of such title for considerable number of years and perfected her title by adverse possession. We are, unable to accept Mr. Lala's contention. In the case of Rangaswamy Goundcn v. Nachiappa Gounden. 46 Ind App 72 at p. 86 : (AIR 1918 PC 196 at p. 202) (H), Lord Dunedin made the following observation :

'But it is well settled that though he who may be termed a presumptive reversionary heirhas a title to challenge an alienation at its inception, he need not do so, but is entitled to wait till the death of the widow has affirmed his character, a character which upto that date might be defeated.'

28. Ekkari, the plaintiff-appellant, was not entitled to succeed to Kirti's estate and claim possession, so long as Nagendrabala was alive, even though she had a limited Interest in the estate. Therefore although he might have challenged earlier the compromise of 1907, investing Nagendrabala with absolute interest, he need not have done so, till the death of Nagendrabala affirmed his character as reversionary heir. Since Ekkari was not required to file the suit earlier, we do not think that) his remedies be-pame barred by adverse possession, at the time when he instituted the suit, out of which this appeal arises.

29. Although we uphold the contentions of Mr. Mukherjee and repel the arguments of Mr. Lala, this appeal must fail on another ground. The Court of appeal below came to the following conclusions :

'Plaintiff after attaining majority did not take any action to set at naught that position arrived at by the compromise or for cancelling the Letters of administration granted on the basis of that compromise. On the other hand he contended himself with the result of the compromise and enjoyed 9 annas share of the property for the last twenty five years, since the death of her mother and aunt. He has thus allowed the things to continue for about 34 years * * * * At this distant date after enjoying full benefit under the compromise * * * * * * plaintiff cannot be allowed to throw it off. The doctrine of estoppel and acquiescence will hit the plaintiff.'

Mr. Lala did not take full advantage of the aforesaid conclusion but we are of opinion that the conclusion of the learned District Judge is correct, although we do not agree that the doctrine either of estoppel or of acquiescence applies.

30. Bose, J. in delivering the judgment of the Supreme Court in the case of Sahu Madho-das v. Multundram, : AIR1955SC481 (I), observed as follows:

'Where a reversioner does not avoid an alienation made by limited owner 'or is precluded from doing so, either because, of the law of limitation or by his own conduct, or for any other reason, then no one else can challenge it; and the law is that once a reversioner has given his assent to an alienation, whether at the time, or as a part of the transaction, or later as a distinct! and separate act, he is bound though others may not be, and having given his assent he cannot go back on it to the detriment of other persons; all the more so when he himself receives a benefit: see Raja Modhn Sudan Singh v. Rooke, 24 Ind App 164 at p. 169 (PC) (J); 'Bijoy Copal v. Sm. Krishna Mahishi Debi, 34 Ind App 87 (PC) (K) and Ramgouda Anna-gouda v. Bhausaheb . Lord Sinha, delivering the Judgment of the Privy Council in the last of these three cases, said at p. 402 (of Ind App) : (at p. 229 of AIR) 'It is settled law that an alienation by a widow in excess of her powers is not altogether void but only voidable by the reversioners, who may either singly or as a body be precluded from exercising their right to avoid it either by express ratification or by acts which treat it as valid or binding.'

This was followed in Dhiyan Singh v. Jugal Kishore, : [1952]1SCR478 , though the ground of that decision was estoppel. We are now founding on another principle which is not grounded on estoppel and which, indeed, is not peculiar to Hindu Law.

Estoppel is rule of evidence which prevents a party from alleging and proving the truth. . Here the plaintiff is not shut out from assertinganything. ****** * * *

The principle we are applying is therefore not estoppel. It is a rule underlying many branches of the law which precludes a person who, with full knowledge of his rights, has once elected to assent to a transaction voidable at his instance and has thus electel not to exercise his right to avoid it, from going back on that and avoiding it at a later stage. Having made his election he is bound by it.

So far as the Hindu Law is concerned, Lord Dunedin explained in 46 Ind App 72 at pp. 86, 87: (AIR 1918 PC 196 at p. 202) (H), a case in which a widow gifted properties to her nephew, that though the reversioner is not called upon to exercise his right to avoid until the reversion falls in and so no assent can be inferred from mere inaction prior to the death or deaths of the limited owner or owners, he is not bound to wait and

'of course something might be done even before that time which amounted to an actual election to hold the deed good.'

, is an illustration of what that something can be.'

31. Referring now to the case of , we find that the facts of the case were that a Hindu died in 1846, leaving a widow who survived until 1912, and a daughter. On the death of the widow Annagouda was heir to the estate. In 1868 the widow had alienated nearly the whole property by three deeds executed and registered on the same day. By the first deed she gave a property to her brother, by the second she sold half of another property to Annagouda and by the third she sold the other half of that property to her son-in-law. The signature on each of the deeds was attested by the two other alienees. Annagouda, who survived the widow for six years, did not seek to set aside any of the alienations. After his death his son and grandsons brought a suit to recover the whole property. The trial Court found in favour of the plaintiffs. On appeal, the High Court dismissed the claim of the plaintiffs in so far as the properties covered by the deeds were concerned. There was an appeal taken to the Privy Council. Lord Sinha in delivering the judgment observed as follows:

'It is settled law that an alienation by a widow in excess of her powers is not altogether void but only voidable by the reversioners, who may either singly or as a body be precluded from exercising their right to avoid it either by express ratification or by acts which treat it as valid or binding.

If some person other than Annagouda had been at the death of Tayava the nearest heir of her husband, it might have been open to him to question all or any of the three deeds, but Annagouda himself being a party to and benefiting by the transaction evidenced thereby was precluded from questioning any part of it. Nor is it other than a most notable circumstance that he did not, after Tayava's death, essay to do SO.'

32. In the present case Ekkari was in enjoyment of the benefits under compromise of 1907, benefits far in excess of what his mother and aunt would have not under the Will, for a considerable number of years. Having benefited himself by the transaction of 1907 so ' long, he is precluded from questioning the same.

33. The exact date of Nagendrabala's death does not) appear. But from the statement in the plaint as to when the cause of action for the suit arose (Paragraph 8 of the plaint) and the evidence of the plaintiff himself to the effect that he went to take possession of the disputed properties in Taistha, 1354 B. S., we conclude that Nagendrabala died towards the beginning of the year 1947, if not earlier. The suit out of which this appeal arises, was filed on 21st July, 1950. It is a notable circumstance, that the plaintiff did not essay to upset the arrangement of 1907 for at least three years after the death of Nagendrabala. In the case reported in , plaintiffs inaction for six years, after the death of the limited owner, was taken as a relevant consideration in justification of the conclusion that the plaintiff was precluded from exercising his right. We are of opinion that the same consideration applies in this case also.

34. This appeal is accordingly dismissed. In the circumstances of the case, we make no order as to costts in this appeal.

Renupada Mukherjee, J.

35. I agree.


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