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Bharateswari Das Vs. Bhagaban Chandra Chakraburty and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily ;Civil
CourtKolkata
Decided On
Reported inAIR1928Cal759
AppellantBharateswari Das
RespondentBhagaban Chandra Chakraburty and ors.
Cases ReferredIsri Dut Koer v. Hansbutti Keorain
Excerpt:
- .....of a certain property and those two sisters obtained a decree for recovery of possession and mesne profits against the judgment-debtors on 23rd september 1916. on 19th october 1916 the land for which the decree for possession and mesne profits was obtained was sold to one purna chandra das by the two sisters. the final decree ascertaining the mesne profits was made by the court on 15th september 1919 against that decree there was an appeal and a second appeal, both of which were dismissed. during the pendency of the appeal jagneswari died and her sons ware brought on the record at the instance of the judgment-debtors. bharateswari presented a petition to the effect that she was the legal representative of her sister and had obtained her interest in the decree by survivorship. the.....
Judgment:

B.B. Ghose, J.

1. This is an appeal by the decree-holder against an order of the Subordinate Judge modifying the order of the Munsiff by which he directed that the decree-holder could only proceed to execute the decree for only one-half of the decretal amount.

2. The dispute between the parties arose in this way. There were two sisters Bharateswari and Jagneswari, of whom Bharateswari is now surviving and she is the appellant before us. It appears that they were dispossessed of a certain property and those two sisters obtained a decree for recovery of possession and mesne profits against the judgment-debtors on 23rd September 1916. On 19th October 1916 the land for which the decree for possession and mesne profits was obtained was sold to one Purna Chandra Das by the two sisters. The final decree ascertaining the mesne profits was made by the Court on 15th September 1919 Against that decree there was an appeal and a second appeal, both of which were dismissed. During the pendency of the appeal Jagneswari died and her sons ware brought on the record at the instance of the judgment-debtors. Bharateswari presented a petition to the effect that she was the legal representative of her sister and had obtained her interest in the decree by survivorship. The question does not appear to have been decided by the Court. After the final dismissal of the appeal by the judgment-debtors against the part of the decree ascertaining mesne profits Bharateswari made an application for execution of the entire amount of the decree on 7th November 1921, and the present appeal arises out of that application.

3. The Munsiff allowed the application after rejecting the objection of the judgment-debtors. The objection of the judgment debtors appears to have been twofold, first that they have paid half of the decretal amount to the guardian of the minor sons of Jagneswari and that certificate of satisfaction had been made by the executing Court to that extent and therefore Bharateswari is not entitled to execute the entire decree. The second objection was that this money in the shape of mesne profits was the separate property of Jagneswari as her stridhan which after her death would go to her heir and would not follow the estate. It is necessary to mention that the two sisters had inherited the estate of their father with regard to which the decree for mesne profits was obtained. The Munsiff, as I have already said, held that Bharateswari was entitled to execute the entire decree. With regard to the question of satisfaction ha seems to have held that there was no real satisfaction because the guardian of the minor sons of Jagneswari seems to have filed a petition of disclaimer as regards the receipt of money. In any ease he held that that payment even if it had bean made to the father of the minor sons of Jagneswari would not prevent Bharateswari from executing the decree. Th9 learned advocate for the respondents contends that when there is that certificate of payment of half of the decretal amount the Court could not go behind that order or set aside the previous order of the executing Court. The short answer to that is that the judgment-debtors could not pay any amount as his share to a decree-holder on the record. The decree was never divided into two halves. The order admittedly was not acquiesced in by Bharateswari and it does not appear that she was given notice of this payment and certificate. That being so she is entitled to contest the certificate and the Munsiff was right in holding that she is not bound by it.

4. The order of the Munsiff was appealed against and on appeal the Subordinate Judge held that the mesne profits could not be a part of the corpus of the father's estate because the two sisters had sold the land for which the decree for mesne profits was obtained, His argument was that at the time when the decree for mesne profits was made in 1919 there was no corpus in the shape of paternal property to which this sum of money can be taken as an accretion as the property had been sold to a third person and there was no paternal estate in the hands of the two daughters. This argument is clearly fallacious and the learned advocate for the respondents does not bas3 his argument upon that view. The property is not gone. The right which accrued to the decree-holders was on account of their having been dispossessed of the property and their rights were certainly referable to the ownership of the land in question.

5. The whole question is whether this sum of money in the shape of mesne profits should be considered as the personal property of the lady Jagneswari or as the assets of her father's estate, and that question it must be admitted is one of considerable nicety. But having regard to the cases that have been cited before us in my opinion the decree for mesne profits should be considered as part of the estate of the father of the two sisters. If Jagneswari had by any manner or means expressed her intention to keep her share of the decretal amount apart from the paternal estate the money would have followed her directions, but not having done so must, according to the decisions as I understand them, follow the estate. The leading case on this point is the case of Isri Dut Koer v. Hansbutti Koerain [1884] 10 Cal. 324, Their Lordships of the Judicial Committee observed in that case that the widow's savings from the income of her limited estate are not her stridhan and if she has made no attempt to dispose of them in her lifetime there is no dispute but that they follow the estate from which they arose. The learned Subordinate Judge thought that the present case is governed by the case of Saodamani Dasi v. Administrator General of Bengal [1893] 20 Cal. 433. There their Lordships of the Privy Council found that the accumulated income from her husband's estate given to the widow was kept separate and their Lordships held that that being so it was to take a different course of succession from that of the estate of the husband.

6. It is next necessary to mention the cases which were referred to by the learned advocate for the respondents. The first case to which our attention is drawn is the case of Saminatha Pillai v. Manikkasami Pillai [1899] 22 Mad. 356. There a Hindu widow obtained a decree for mesne profits, but she herself assigned the decree for mesne profits and subsequently died; the question was whether the assignees were entitled to execute the decree or her heirs. In such a case it could not be disputed that she had dealt with the property in her lifetime and so with reference to the case of Isri Dut Koer v. Hunsbatti Koerain [1884] 10 Cal. 324 the assignee was entitled to execute the decree. That case, however, has no bearing on the present question. The case next cited is Subra Manian Chetti v. Arunaahelam Chetti [1905] 28 Mad. 1 (F.B.). There also the question was quite different. The Hindu widow was never in possession of her husband's estate. She used to sot moneys under a decree for maintenance and out of this she had acquired certain other properties. It has never been held that when a widow gets money for her maintenance out of the estate of her husband that money if not spent by the widow herself follows the estate, it is not the income of the property that came into her possession, but she was allowed a certain sum out of the income for her own maintenance and there cannot be any question that it was her stridhan as it was held in that case. The next case cited is the case of Sitaram v. Dulam Kuar [1919] 41 All. 350. That case, however, has only a superficial resemblance to the present case. In that case one of two sisters out of the income of her father's estate lent money to the sons of the other sister for the purpose of paying the revenue with regard to some other property; then she obtained a decree against her debtors, and the question was whether the right to execute the decree after her death was in her surviving sister or in the legal representatives of the decree-holder, that is the heirs of her stridhan. The learned judges referred to the case of Isri Dut Koer v. Hansbutti Koerain [1884] 10 Cal. 324 above cited and held that the decree-holder intended in that case that the money which was lent to her sister's sons should not go to her sister after her death, that is, she wanted to treat the property separately. The last case cited was the case of L.W.J. Rivett-Carnac v. Jivibai [1886] 10 Bom. 478. That case it seems to me has no bearing on the present question, because it was held that there was nothing to show that the money was the saving or accumulation of the estate of the widow's husband so as to give it to the hairs of the husband's estate.

7. On all these grounds in my opinion the present case is governed by the decision of the Privy Council in Isri Dut Koer v. Hansbutti Keorain [1884] 10 Cal. 324 cited above. The judgment and order of the Subordinate Judge will therefore be set aside and those of the Munsiff restore with costs in all Courts.

8. The hearing fee is assessed at five gold mohurs.

Bose, J.

9. I agree.


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