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Lalit Mohan Banerjee and anr. Vs. Norodamoyi Dasi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal494,101Ind.Cas.339
AppellantLalit Mohan Banerjee and anr.
RespondentNorodamoyi Dasi
Excerpt:
- .....court was set aside and the suit was decreed. it appears that there were two brothers, khettro and dharani. dharani died before khettro, leaving a widow, the present plaintiff-respondent. khettro died leaving no wife. khettro left a will appointing the present appellants executors to his estate. by the will he dealt with all the properties which he enjoyed with, dharani as his own. it appears that the properties consisted of a rope-factory, cash and residence. he left rs. 300 out of the cash to the plaintiff. she was also to get rs. 4 a month from the profits in the rope-factory and she was to have also a life-estate in the residence. thereafter it appears that she had to bring two suits for her maintenance to recover her monthly allowance out of the rope-factory and interest on the.....
Judgment:

1. This is a suit in partition. It was dismissed by the first Court but on an appeal to the lower appellate Court the decree of the first Court was set aside and the suit was decreed. It appears that there were two brothers, Khettro and Dharani. Dharani died before Khettro, leaving a widow, the present plaintiff-respondent. Khettro died leaving no wife. Khettro left a Will appointing the present appellants executors to his estate. By the Will he dealt with all the properties which he enjoyed with, Dharani as his own. It appears that the properties consisted of a rope-factory, cash and residence. He left Rs. 300 out of the cash to the plaintiff. She was also to get Rs. 4 a month from the profits in the rope-factory and she was to have also a life-estate in the residence. Thereafter it appears that she had to bring two suits for her maintenance to recover her monthly allowance out of the rope-factory and interest on the legacy of Rs. 300 which for some reason or other was not made over to her in cash.

2. She has now brought this suit claiming that Dharani and Khettro being joint in mess, properties and worship were each 8 annas co-sharers in all these properties and she sued for partition to have her own share declared. The lower appellate Court has decreed the suit for partition except in respect of two plots half of which is in the possession of a gentleman who is not before the Court. The lower appellate Court found as a fact that the properties were joint properties of the two brothers Khettro and Dharani and that finding of fact is admittedly conclusive. It is urged, however, that the lady elected to take under the Will and so under Section 187 of the Indian Succession Act of 1925 (reproducing the old Section 173 of Act 10 of 1865) she has elected to take under the Will and, therefore, cannot now claim a half share in the properties in suit. No doubt there may be a presumption against her as she enjoyed the benefits of the Will to a certain extent for over two years. But the finding is that she is uneducated and deaf and did not know her legal position in this matter. It is clear that no person is bound by the principle of election unless he has the knowledge of his right to elect and of the circumstances which would influence the judgment of a reasonable man in making the election. We think that this finding as to the plaintiff's ignorance must mean that the principle of election cannot apply to this case. In this view, therefore, we consider that the learned District Judge is right and that the lady is entitled to the partition as claimed.

3. It is urged that the lady after the partition should be made to account for the benefits she has so far received under the Will. We do not think that there is very much in this contention. Apparently, all that she got is not more than Rs. 7 a month and that also after her having to go to Court twice and her residence in the ancestral house. Therefore, there is nothing, in our opinion, really substantial for which she can be asked to account. Rs. 7 is much less than what she would get for her half share of the two brothers' properties.

4. In this view the appeal is dismissed with costs.


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