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Lalchand Bhur and anr. Vs. Sm. Sushila Sundari Dassi and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 137 of 1959
Judge
Reported inAIR1962Cal623
ActsHindu Succession Act, 1956 - Section 14(1)
AppellantLalchand Bhur and anr.
RespondentSm. Sushila Sundari Dassi and ors.
Appellant AdvocateAditya Narayan Ganguly, Adv.
Respondent AdvocateR.C. Deb, ;G. Mitter and ;Rathin De, Advs.
DispositionAppeal dismissed
Cases Referred and Babu Hanuman Prasad v. Mt. Indrawati
Excerpt:
- .....longerany reversioner to the estate of bamacharan whowould succeed to his estate on the death of sushilasundari within the meaning of clause 7 (c). consequently clause 7 (c) can no longer apply to thechanged circumstances. the learned judge wasright in holding that clause 7 (c) was also not applicable to the changed situation and was not binding. 6. no other point has been argued before us. it follows that this appeal must fail. 7. we pass the following order. the appeal be and is hereby dismissed. the respondent sushila sundari do pay to the guardian-ad-litem of the respondent deity, the costs of and incidental to this appeal. save as aforesaid the parties do pay and bear his or her own costs incidental to this appeal. 8. injunction granted by this court is vacated. the respondent.....
Judgment:

Bachawat, J.

1. This is an appeal by the defendants Lalchand Bhur and Kalachand Bhur against the decree declaring that a consent decree passed in Suit No. 1493 of 1942 except Clauses 7 (a), 7 (b), 8 (ii)(a) (b) and 9 and 11 thereof are no more applicableor of any effect or executable or binding upon the plaintiff Sushila Sundari Dassi and consequential reliefs. One Bamacharan Bhur, a Hindu governed by Dayabhaga Law died in 1905 leaving behind him substantial properties and his widow Sushila Sundari as his heir. In 1942 Lalchand a reversioner to the estate of Bamacharan instituted asuit against Sushila Sundari impleading as parties to the suit all other immediate and remote reversioners to the estate of Bamacharan and also the deity Sri Sri Brojokishore Jew claiming, inter alia, a declaration that Lalchand and certain other persons were the then reversioners entitled to succeed to the estate of Bamacharan on the death of Sushila Sundari, an injunction restraining Sushila Sundari for mismanaging, wasting or otherwise wrongfully dealing with or disposing of the estateof Bamacharan to the prejudice of the rights of the reversioners, a declaration that a property standing in the name of the deity Sri Sri Brojo Kishore Jew Thakur belonged to the estate of Bamacharan, an enquiry as to what the estate consisted of, an account of the dealings of the estate by Sushila Sundari and suitable direction and scheme of management of the said estate for the protection of the rights of the reversioners. Before any written statement was filed the parties to the suit settled their disputes and a consent decree was passed in the suit on the basis of the terms of settlement dated 15th December, 1942. On the coming into operation of the Hindu Succession Act 1956, Sushila Sundari contends that the entire basis and purpose of the consent decree and the rights declared thereby has been nullified and destroyed by the Hindu Succession Act and has become useless and applicable having regard to the fact that Sushila Sundari has become a full owner of the property. She claims that she has become the absolute owner of the properties mentioned in annexure 'B' to the plaint and that she holds the properties free from the restrictions imposed by theconsent decree and that the defendants 1 to 12who were formerly the reversionary heirs of theestate of Bamacharan had no rights, title and interest in the properties. On this basis she claims inthe present suit a declaration that most of the terms, conditions and directions contained in the terms of settlement were no more applicable or of any effect or executable or binding upon her and an injunction restraining the defendants from interfering with her possession and absolute enjoyment of the property and from enforcing and executing the consent decree in the previous suit.

2. The terms of settlement embodied in the consent decree in the previous suit consisted of sixteen clauses. The learned Judge has held that the aforesaid terms of settlement save and except Clauses 7 (a) and (b), 8 (ii) (a) and (b), 9 and 11 thereof are no more applicable or of any effect or executable or binding upon the plaintiff. The findings of the learned Judge are challenged in this appeal only in so far as the learned Judge held that Clauses 4, 5, 6 and 7 (c) are no longer applicable or enforceable and axe not now binding upon the plaintiff. It appears to us that the learned Judge rightly held that Clauses 4, 5, 6 and 7 (c) are no longer applicable and binding upon the plaintiff. By Clause 4 Sushila Sundari by way of discovery declared that the properties set out in annexure 'A' thereto belonged to the estate of Bamacharan and stated that she had not alienated or encumbered or otherwise dealt with any of the properties prejudicially affecting the interests of the reversioners to the estate of Bamacharan and undertook in future not to alienate or encumber of otherwise deal with the estate so as to prejudicially affect the reversionary interest without the consent of the plaintiff in writing of some of the reversioners to the estate of Bamacharan viz., Lal chand, Kalachand, Balaichand and Kanailal or their survivors. The whole basis of the consent decree was the fact that Sushila had then a limited Hindu widow's interest in the estate of Bamacharan and that the other parties to the suit except the deity were then the immediate or prospective reversioners to the estate. That basis has now ceased to exist since the passing of the Hindu Succession Act, 1956. It is common case before us that on the date of the passing of the Hindu Succession Act the plaintiff Sushila Sundari was in possession of the properties belonging to the estate of Bamacharan. Consequently by Section 14(1) of the Act she became the full owner of those properties. It was conceded before the learned trial Judge that Section 14(2) of the Hindu Succession Act did not apply to the case and plainly this concession was rightly made. The properties in question were not acquired by Sushila Sundari under a decree or order of a Civil Court. Consequently after the passing of the Hindu Succession Act there was no longer in existence a limited Hindu Widow's estate in respect of the properties nor any reversionary interest in respect thereof. Sushila Sundari has now become the full owner of those properties. There can be no reversion and no reversionary interest in respect of the properties held by her as full owner, see Muradakkal v. Animugha, AIR 1958 Mad 255, Bhabani Prasad Saha v. Sarat Sundari, (S) : AIR1957Cal527 and Babu Hanuman Prasad v. Mt. Indrawati, : AIR1958All304 .

3. In this background it is plain that Clause 4 of the terms of settlement can no longer operate.Clause 4 embodied an undertaking by Sushila Sundari not to alienate or encumber or otherwise deal with the estate so as to prejudicially affect the reversionary interest. Since there is no reversionary interest, this clause can no longer operate. Clauses 5 and 6 of the terms of settlement were also intended to safeguard the reversionary interest of the reversionary heirs to the estate of Bamacharan. This in made plain by reference to the terms of settlement as a whole and to the plaint in the suit in which the terms of settlement were filed. Clauses 5 and 6 gave special directions for the protection of the rights of the reversioners. Those safeguards were imposed because the general safeguards mentioned in Clause 4 were not thought sufficient. In the changed circumstances, Clauses 5 and 6 have also become inoperative.

4. We think also that Clause 7 (c) of the terms of settlement is no longer applicable. Clause 7 recorded the statement of Sushila Sundari that the premises No. 1 Aga Karbala Mohammed Street were purchased in the name of Thakur Sri Sri Brojo Kishore Jew for the benefit of the Thakur was recorded. The parties also agreed and confirmed that the premises should be treated as the absolute debutter property of the Thakur and that Sushila Sundari would be entitled to manage the said property as shebait and to realise the rents and issue thereof for the sheba of the Thakur during her life time. Then followed Clause 7 (c) which reads as follows:

''That after her death the reversioners of the estate of Bamacharan Bhur who will succeed to the said estate on the death of Sushila Sundari Dassi and their heirs will be the shebaits and shall have the right to manage the said property and to realise the rents and issue thereof for the sheba of the Thakur.'

5. For the reasons given already we havecome to the conclusion that after the passing ofthe Hindu Succession Act, 1956, there is no longerany reversioner to the estate of Bamacharan whowould succeed to his estate on the death of SushilaSundari within the meaning of Clause 7 (c). Consequently Clause 7 (c) can no longer apply to thechanged circumstances. The learned Judge wasright in holding that Clause 7 (c) was also not applicable to the changed situation and was not binding.

6. No other point has been argued before us. It follows that this appeal must fail.

7. We pass the following order. The appeal be and is hereby dismissed. The respondent Sushila Sundari do pay to the guardian-ad-litem of the respondent deity, the costs of and incidental to this appeal. Save as aforesaid the parties do pay and bear his or her own costs incidental to this appeal.

8. Injunction granted by this Court is vacated. The respondent plaintiff will have one month's time from today to pay the costs which she had been directed to pay by the decree of the trial Court.

9. The cross-objection is not pressed and is accordingly dismissed.

Laik, J.

10. I agree.


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