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Upendra Nath Mukherjee Vs. Gurupada Halder and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Reported inAIR1930Cal508
AppellantUpendra Nath Mukherjee
RespondentGurupada Halder and anr.
Cases ReferredRangasami Gounden v. Nachippa Gounden A.I.R.
Excerpt:
- .....and according to the award of the arbitrator a decree was made, under which nitambini got 10 annas share of the property, the other six annas share remaining in the possession of biswamoyi. the question for consideration would be whether, as a result; of the decree, biswamoyi had acquired any interest in the six annas share. with regard to the 10 annas share, the finding of the learned judge on appeal was that nitambini was unable to get possession of her 10 annas share. then she sold the 10 annas interest to the then reversionery heir of her husband kenaram haldar who happens to be the father of the present plaintiff. the finding of the learned judge is that kenaram sold his interest in the 10 annas in his turn to biswamoyi and thus biswamoyi became entitled to remain in.....
Judgment:

B.B. Ghose, J.

1. (S.A. No. 2306 of 1927). This appeal arises out of a suit for recovery of possession of a plot of land on the ground that the plaintiff was the reversionary heir of Pran Krishna Haldar who died so long ago as 26th January 1866. He left surviving him his mother Biswamoyi who died on 16th November 1899 and a widow Nitambini who died on 13th July 1919. The plaintiff brought the suit on 5th October 1923 as having succeeded to the property on the death of the widow Nitambini. The defendant claimed the property under a lease from Biswamoyi dated 20fch July 1894. The lease was a permanent one. His plea was that Biswamoyi had an abs.olute interest in the property and that she was entitled to grant a permanent lease to the defendant. The short question, therefore, which arises in this case is whether Biswamoyi had the right to grant a permanent lease of the property in question. It appears that after the death of Pran Krishna the mother-in-law and the daughter-in-law were at loggerheads. In January 1868 Nitambini sued Biswamoyi for recovery of possession of various properties. The case was referred to arbitration and according to the award of the arbitrator a decree was made, under which Nitambini got 10 annas share of the property, the other six annas share remaining in the possession of Biswamoyi. The question for consideration would be whether, as a result; of the decree, Biswamoyi had acquired any interest in the six annas share. With regard to the 10 annas share, the finding of the learned Judge on appeal was that Nitambini was unable to get possession of her 10 annas share. Then she sold the 10 annas interest to the then reversionery heir of her husband Kenaram Haldar who happens to be the father of the present plaintiff. The finding of the learned Judge is that Kenaram sold his interest in the 10 annas in his turn to Biswamoyi and thus Biswamoyi became entitled to remain in possession of the entire 16 annas share. The learned Judge found that this 10 annas share was sold by Nitambini to Kenaram, the then presumptive heir, for legal necessity. Upon the finding that Kenaram sold that share to Biswamoyi, he held that Biswamoyi had acquired an absolute interest to that 10 annas share reversing the decision of the Subordinate Judge to that extent. Upon this finding he dismissed the plaintiff's suit decreeing the appeal of the defendant against the judgment and decree of the Subordinate Judge to that extent; but he affirmed his decree with regard to the six annas share because, in his opinion, the six annas share-appertained to the estate of Pran Krishna Haldar and the lady Biswamoyi had no right to grant a permanent lease of the property and, therefore, the plaintiff was entitled to succeed with regard to the six annas, thus varying in part the decree of the Subordinate Judge who decreed the entire suit in favour of the plaintiff. Now the appeal by the defendant is with regard to the six annas share and is numbered 2306 of 1927. The plaintiff has preferred an appeal with regard to the 10 annas share dismissed by the District Judge and that appeal is numbered 612 of 1928.

2. Various questions were discussed before the learned District Judge as regards limitation and so forth. But the short point upon which the decision of the right of the plaintiff must rest is with regard to the effect of the decree in suit No. 1 of 1868 brought by Nitambini against Biswamoyi. Nitambini brought the suit against Biswamoyi on the ground that Biswamoyi had dispossessed her. In the decree she got 10 annas share. Her suit with regard to the six annas share was dismissed. The question is whether having regard to the series of cases decided by the Privy Council, Kattama Nauchear v. Raja of Shivagunga [1861-63] 9 M.I.A. 539, Hari Nath Chatterjee v. Mothur Mohun Goswami [1894] 21 Cal. 8 and the last of these, viz., Jaggo Bai v. Utsava Lal A.I.R. 1929 P.C. 166 in which those cases were cited by their Lordships of the Privy Council with approval, the plaintiff is entitled, in spite of that decree, to recover possession of the property as the reversionary heir of Pran Krishna. It is contended on behalf of the plaintiff respondent that by reference to the award of the arbitrator it would appear that the six annas share of the property-was given by Nitambini to Biswamoyi for her maintenance only. That being so, on the death of Biswamoyi the property reverts to Nitambini and the plaintiff would be entitled to that share as the reversionary heir of Pran Krishna, In the reasons given by the arbitrator he stated that Nitambini was entitled to the 16 annas of the property left by her husband. But she gives up her interest to the six annas of the property because Biswamoyi was entitled to maintenance out of her husband's estate. Upon that award a decree was made the effect of which was that Nitambini's suit with regard to the six annas interest was dismissed. Two difficulties arise in the way of the plaintiff under the circumstances.

3. If the construction contended for by him of the award were correct that it was only a maintenance grant which terminated at the end of Biswamoyi's life, then the decree was not in accordance with the award. But the decree was never set right by proper procedure and therefore, he cannot now say that there was only a grant of a life-interest to Biswamoyi for maintenance. Next the words are very clear in the award of the arbitrator that Nitambini relinquished six annnas share whatever the reason might be. The reason assigned was no doubt the right of maintenance of Biswamoyi. Biswamoyi was resisting her possession to the whole of the property. Under such circumstances, if Nitambini relinquished as a matter of compromise 6 annas share of the property in order to get possession of the 10 annas, that would be a compromise of a disputed litigation and according to the authorities of their Lordships of the Judicial Committee that compromise is binding on the reversioners : see Khunni Lal v. Gobinda [1911] 33 All. 356, and Ram Sumran v. Shyam Kumar A.I.R. 1922 P.C. 356, where all the cases are reviewed. Of course, if the reversioner could show fraud or any other ground upon which a decree should be shown to be not binding upon him that would be another matter. But there is nothing of the sort in this case. In my judgment, that is also not the way in which Nitambini understood the decree made under the award. If that was the correct interpretation of the decree, then after the death of Biswamoyi in 1899 Nitambini would get possession of the property, but it has never been said that for 20 years the period for which Nitambini survived her mother-in-law, she exercised any act of possession with regard to the property in question. In my judgment, therefore, the decree in suit No. 1 of 1866 is binding upon the plaintiff and he is not entitled to recover possession of the 6 annas share with regard to which the suit of Nitambini was dismissed. On this short ground this appeal must be decred with costs.

4. Appeal No. 612. - This appeal is by the plaintiff against that part of the decree of the learned District Judge by which he dismissed his suit with regard to the 10 annas share of the property. It is contended on behalf of the appellant that the learned Judge is wrong in holding that Nitambini's sale to Kenaram was for legal necessity. It i3 argued in the first place that no legal necessity was pleaded in the written statement. Then it is said that there is no actual evidence that there was any pressing necessity for which Nitambini had occasion to sell the property to the then reversioner Kenaram. It is contended that a sale with the consent of the next presumptive reversioner raises a presumption of legal necessity as was stated by their Lordships of the Judicial Committee in the ca3e of Rangasami Gounden v. Nachippa Gounden A.I.R. 1918 P.C. 196 because the person who would be interested to object to the sale by the limited owner does not object to the sale. The person who was entitled to object was himself taking the property in this case and, therefore, the presumption of legal necessity by reason of the consent of the reversioner does not arise. This argument seems to ma to be logical. But there is another point in the case which is against the plaintiff's contention and that is the document itself recites the existence of necessity and the document being dated 1877 and both the parties to it being dead, the presumption as held by the Privy Council arises that there was legal necessity and, unless rebutted, the Court was entitled to act upon it. In this case, there is a further difficulty arising out of the fact that Biswamoyi seems to have been a masterful lady. Notwithstanding that Nitambini got 10 annas share under the decree the learned Judge finds that she was unable to get possession of the property, and after the purchase by Kenaram he also found it difficult to get possession as against that lady, and the finding of the learned Judge is that Kenaram finding his position like that transferred his right to Biswamoyi. With regard to the question that legal necessity was not specifically pleaded, it may be said that the defendant had asserted an absolute right to the property by reason of a transfer from a qualified owner. This connotes the idea of the transfer being for legal necessity. That is what the learned Judge has held. Unless a transferee from a qualified owner as a Hindu widow can establish legal necessity for the transfer, the reversioner would be entitled to get possession of the property. That is a well understood proposition. The defendant in such a case as this, when he asserts his absolute right, is bound to prove legal necessity in order that he may succeed and when the defendant proved the kabala by Nitambini in favour of Kenaram that was evidence of legal necessity which was put forward by him. The plaintiff then had the right to rebut that evidence. Apparently the plaintiff never exercised that right and, therefore, the contention of the learned advocate for the plaintiff-appellant that he should be given an opportunity to rebut the evidence adduced by the defendant as to the existence of legal necessity seems to me to be a belated prayer which cannot be allowed. Under these circumstances, this appeal must stand dismissed with costs.

5. Appeal No. 611 - In this case both the Courts below have found that the plaintiff has failed to prove that the property belonged to Pran Krishna whose reversionary heir the plaintiff claims to be. The learned Judge has recited the evidence which is very cogent in three sentences, and it is very difficult to attack the reasoning of the learned Judge. Dr. Basak on behalf of the plaintiff, however, urges that if the property belonged to the Haidars as a body, Pran Krishna being one of them, must have had soma share in the property, and as this point of view was not pressed by the plaintiff's legal advisers in the Court below, the plaintiff is going to suffer, and therefore he asks leave to withdraw his suit with liberty to bring a fresh suit. That, however, cannot be allowed after the case has been fought on for so many years. This appeal must also stand dismissed with costs.

S.K. Ghose, J.

6. I agree.


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