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Debendra Nath De and ors. Vs. Tulsimoni Dasi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.810
AppellantDebendra Nath De and ors.
RespondentTulsimoni Dasi
Cases ReferredKamini Debi v. Promotho Nath Mookerjee
Excerpt:
land acquisition act (i of 1894), section 32 - compensation money invested under provisions of section--special judge, power of, to deal with questions of application of money--hindu widow, right of, to get fund invested--burden of proof. - .....cas. 491 : 13 c. l. j. 597 : 39 c. 33. these oases show that as the fund is in the custody of the special judge, be is competent to deal with the question of its application. there is no controversy that the special judge is competent to apply the fund in the purchase of other lands or in payment to a person who has become absolutely entitled thereto. such authority, however, implies a power to make an enquiry. there is no foundation for the contention that the application should have been made to the district judge. if the land had not been acquired for public purposes, it would have been open to the widow to alienate the same on the allegation of legal necessity without the permission of the district judge. no doubt in such an event the purchaser would have taken the property subject.....
Judgment:

1. We are invited in this Rule to set aside an order, made by a Special Judge under the Land Acquisition Act, for the disposal of a portion of a fund in his custody which had been invested in Government securities under Section 32. It appears that land which formed at one time part of the estate of one Khagendra Nath Dey and had, after his death, vested in his childless widow Tulsimoni Dasi was acquired under the Land Acquisition Act. The sum awarded as compensation was accordingly invested in Government securities under the provisions of Section 32. The widow has now applied to the Land Acquisition Judge to take steps to sell a portion of the Government securities in order to enable her to satisfy a charge created by a Receiver on land comprised in the estate inherited by her from her husband. Notice of this application was served upon the reversioners who entered appearance and objected. The Land Acquisition Judge thereupon heard the objections and overruled them. We are now invited to set aside this order on two grounds: first, that the Land Acquisition Judge had no jurisdiction to entertain- the application of the widow; and secondly, that, if he had jurisdiction, he should not have made the order without enquiry into the truth of the allegations made by her. In our opinion, the first contention is not well founded but the second must prevail.

2. As regards the first objection, we observe that the principle applicable to cases of this character was explained by this Court in Mrinalini Dasi v. Abinash Chunder Dutt 6 Ind. Cas. 508 : 11 C.L.J. 583 : 14 C. W.N. 1024 and Kamini Debi v. Promotho Nath Mookerjee 10 Ind. Cas. 491 : 13 C. L. J. 597 : 39 C. 33. These oases show that as the fund is in the custody of the Special Judge, be is competent to deal with the question of its application. There is no controversy that the Special Judge is competent to apply the fund in the purchase of other lands or in payment to a person who has become absolutely entitled thereto. Such authority, however, implies a power to make an enquiry. There is no foundation for the contention that the application should have been made to the District Judge. If the land had not been acquired for public purposes, it would have been open to the widow to alienate the same on the allegation of legal necessity without the permission of the District Judge. No doubt in such an event the purchaser would have taken the property subject to the inevitable risk of a challenge from the reversioners when the succession should open out. The land, however, has been converted into money and is in the custody of the Special Judge; he is consequently the proper officer to determine whether any portion of the fund should be made over to the widow and for this purpose to investigate whether contingencies have happened which entitle the widow to make an absolute alienation of the fund. The first objection consequently fails.

3. As regards the second objection, it is plain that the Special Judge should have taken evidence to determine judicially whether the allegations of the widow are or are not well founded on fact. The orders recorded in the order sheet seem to indicate that the view which found favour with the Special Judge was that the burden lay upon the reversioners to substantiate their objections. The true position, however, as explained in the case of Kamini Debi v. Promotho Nath Mookerjee 10 Ind. Cas. 491 : 13 C. L. J. 597 : 39 C. 33 is that it is incumbent upon the widow in the first instance to establish that events have happened which entitle her to spend either in whole or in part the fund in the custody of the Court. When she has satisfied the Court that such events have happened, the burden, no doubt, shifts upon the reversioners to meet her allegations. Reliance, however, was placed on behalf of the widow upon the decision in In re Pfleger (1868) 6 Eq. 426, to show that it was competent to the Special Judge to apply the funds in the purchase of other glands and that in the case before us, the application in substance invited the Special Judge to take action in this direction. In our opinion, this contention is ingenious but unsound. What Section 32 contemplates is the application of the compensation money in the purchase of other hinds. But these lands when acquired must become additions to the estate of the full owner from whom the widow derives title. The substance of the transaction proposed here, on the other hand, is that a portion of the fund should be applied to discharge a burden which has been imposed upon another portion of the estate of the husband of the lady. The contention put forward is that if the charge is not so satisfied, the property encumbered would be sold and would pass out of the hands of the widow. But if the funds in the custody of the Special Judge are applied to save the properly from impending sale, the result clearly is, not 'the investment of money in the purchase of other lands,' but the satisfaction of a charge imposed upon another portion of the estate. This, in our opinion, could never have been intended by the framers of Section 32 as an 'investment.'

4. The result is that this Rule is made absolute and the order of the Special Judge discharged. The record will be returned to him in order that he may hold an enquiry into the truth of the allegations made by the wide and to determine whether circumstances have arisen which justify an alienation by the widow for legal necessity. If a case of legal necessity is made out the Special Judge will make an order for the proposed application of the fund in his custody; otherwise, the application must be dismissed. There will be no order for the costs of this Rule.


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