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Sm. Tilottama Dasi Vs. Madhu Sudan Giri - Court Judgment

LegalCrystal Citation
Subject Family
CourtKolkata
Decided On
Reported inAIR1928Cal713a,117Ind.Cas.703
AppellantSm. Tilottama Dasi
RespondentMadhu Sudan Giri
Cases ReferredNathun v. Nai Babu
Excerpt:
- .....to be reopened and permit the question of the validity or otherwise of the alleged marriage to be agitated at such a late stage and especially at the instance of defendant 1 who has been found to have no title to kamal's properties, in my judgment, will not be right.5. i would accordingly dismiss the appeal with costs.rankin, c.j.6. i agree.
Judgment:

Mukherji, J.

1. The plaintiff instituted this suit to establish his title to certain properties and to recover possession of some of them and to have his possession confirmed in respect of the rest. The. plaintiff's case was that he is the reversioner to one Kamal Giri, who died leaving a widow named Gayamani, and that the latter having died he has become entitled to the properties as such reversioner. His case further was that the defendant Tilottama Dasi who is really an illegitimate daughter of Gayamani had got certain erroneous entries made during the settlement operations1 in respect of the properties and had dispossessed him from some of the properties and was disturbing his possession in the others. The defence, on the merits, was that the defendant is the legitimate daughter of Kamal Giri and as such is entitled to and is in lawful possession of the lands in suit. As regards a part of the lands, namely a plot of two kattas of land, the plaintiff's title was admitted, it being said that the plaintiff had made a purchase of this plot from the defendant. The Mun9if held that the defendant was the legitimate daughter of Kamal and so dismissed the suit, except. as regards the two kattas in respect of which the plaintiff's title was admitted. The District Judge, on appeal by the plaintiff from that decision, has decreed the suit in its entirety. He has held that a document in the nature of a deed of gift which Gayamoni had executed in favour of the defendant and in which there was a recital to the effect that the-defendant was the daughter of Kamal and it was also recounted that Gayamani herself had contracted a Sanga marriage after she had become a widow and had thus forfeited her rights to the properties left by Kamal, was a collusive document executed for the purpose of creating a title for the defendant by means of false recitals. He was not inclined to accept the defendant's story that the plaintiff had purchased the two kattas of land from her - a fact, which if true, would indicate' a recognition of the defendant's title on the part of the plaintiff. He has held that the defendant is an illegitimate daughter of Gayamani. The defendant-has then preferred this appeal.

2. The only ground upon which the appeal is pressed is the question of limitation. It is said that as Gayamoni re married as a widow she forfei ted her rights to the property left by Kamal and so plaintiff had, under Article 143 of the Schedule to the Limitation Act, 12 years from the forfeiture. In Mr. Starling's Limitation Act these is an observation to the effect that when a Hindu widow remarries and forfeits her rights to her husband's estate under Section 2, Act 15, 1856 the reversionary heir must bring his suit for possession within the time allowed by this article; and it is on this observation that the appellant chifly relies. The appellant has also argued on the lines of the decision in the case of Nathun v. Nai Babu [1915] 11 N.L.R. 86, a case of the Court of the Judicial Commissioner of Nagpur that it is Article 143 that should govern the case, but if Article 141 applies the plaintiff is also out of time as the remarriage of Gayamoni amounted to her civil death and she being on account of the marriage dead in the eye of law, the plaintiff had 12 years from the remarriage to institute a suit.

3. Now, as at present advised, I should be extremely reluctant to agree in the contention either that the remarriage of a Hindu widow amounts to her civil death or that 'death' in Article 141 includes a remarriage which entails a forfeiture, or again that Article 143 was intended to apply to a forfeiture of this kind. If the latter article applies - I am not saying that it does - a further question may arise, namely, whether the plaintiff had the option to waive such a forfeiture. I do not, however, desire to decide these questions as in my opinion they fall outside the pleadings in the present suit. If it had been necessary to decide them, it would perhaps have been necessary in the first instance to get a clear finding from the lower appellate Court as to whether a Sanga marriage had, in fact, been contracted by Gayamoni. The Munsif found that Gayamoni had contracted such a marriage, but the District Judge has not recorded any finding on the point though what he has said in his judgment strongly indicates that he was not inclined to believe that such a marriage had taken place.

4. The allegations in the plaint constitute a simple case coming under Article 141. The defendant's allegations in the written statement were to the effect that she herself was in adverse possession as Gayamoni has lost her rights on remarriage. The allegations of the defendant may raise either a case under Article 144 or under Article 143. A case under Article 144 would ordinarily be untenable, for adverse possession against the widow will not, in the absence of special circumstances, bar the reversioner. To succeed under Article 143 the defendant will have to establish that there was a valid remarriage, that is to say that the Sanga marriage was a marriage recognized, by custom amongst the people of the caste to which Gayamoni and her supposed second husband belonged. The defendant has made no endeavour in that direction. Beyond a very general statement by some of the witnesses, that there was such a marriage, contracted by an equally general statement by others that there was not, there is nothing else on the, record. There is no evidence to show the incidents which would establish the validity of this marriage, if in fact it had taken place. To allow the case to be reopened and permit the question of the validity or otherwise of the alleged marriage to be agitated at such a late stage and especially at the instance of defendant 1 who has been found to have no title to Kamal's properties, in my judgment, will not be right.

5. I would accordingly dismiss the appeal with costs.

Rankin, C.J.

6. I agree.


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