D.N. Mitter, J.
1. This is an appeal against the decree of the Subordinate Judge of Dacca dated 20th April 1932 by which he dismissed the plaintiffs' suit for recovery of possession of about 16 gds. share of the estate of one Madhu Sudan Das, a wealthy banker and zemindar of the district of Dacca. The claim of the plaintiffs, who are appellants before us, turns on the legal effect of a document which was executed so far back as in the year 1877. In order to understand the questions raised by this appeal on behalf of the plaintiffs it is necessary to state a few circumstances which led to the execution of this document dated 29th September 1877 by Shyampeari Dassya in favour of Mohini Mohan Das, the eldest, son of the said Madhusudan Das. The relationship of the parties are shown in the following genealogical tree which is admitted by both parties.
(See page 393)
2. It appears from the said tree that Madhu Sudan Das died leaving him surviving five sons Mohini Mohan, Radhika Mohan, Lal Mohan, Kshetra Mohan, and Sashi Mohan, and his wife Shyam Peary. One of the sons Sashi Mohan, died a few months after the death of Madhu Sudan Das on 1st October 1865, and under the Dayabhaga system of the Hindu Law Sashi Mohan's 1/5th share, which corresponds to 3 aSection 4 gds. share in the estate of Madhu Sudan Das, devolved on his mother Shyampeari. It appears that a will was executed by Madhu Sudan on 24th November 1855, several years before his death which happened on 12th April 1865. That will is to be found printed at p. 1 of the second part of the paperbook and has been marked as Ex. B in the suit. It is not necessary to refer to all the terms of the said will beyond stating that there is a provision in the said will by which the power of management of the estate left by Madhu Sudan after Madhu Sudan's death was given to the eldest son Mohini Mohan. Mohini according to the power given to him by the will was managing the properties. mentioned in the schedule as forming part of the estate of Madhu Sudan and other properties mentioned in the schedule. The next event which requires mention is the execution of the Nibandhan Patra on 7th December 1875, between the sons of Madhu Sudan except Sashi Mohan who had died in the meantime. See Ex. F printed at p. 11 of the second part of the paper book. In this Nibandhan patra it was stated that they were owners in equal shares of all the properties the moveable and immovable which stood in the name of their father Madhu Sudan as also of the money lending and trading concern, etc. In para. 1 of the said document it was stated that each of the sons would get a sum of Rs. 300 per month from the estate and that Mohini Mohan was to carry on the management and act as the Karta of the 16 as. of the estate left by his father. The karta was given the power to sell off any useless moveable or immoveable property of unprofitable nature with the consent of all the brothers. The Karta was to conduct law suits relating to the estate in his own name after stating the names of the three other brothers.
MADHUSUDHAN DAS = Shyam Peary
| | | | |
Mohini Mohan Radhika Mohan Lal mohan Kshetra Mohan Sashi Mohan
(D. December 1896) (D. 26-6-1878) (d. 1885) (D. 1898) (D. 1-10-1865)
leaving a widow
= = =
Widow Govinda Priyamoyee Radharani
Rani(D. 1920) (D. December 1902) (Plantiff 1)
| | |
Krishna Preyashi Brindarani Matilal Das = Brojomohini
(D. 22-5-1930) (Defendant 1) (D. 24-10-25) | (Plantiff 2)
| | |
Sons Sons Ajit Kumar Das (minor)
Plantiff-Defendants 2-6 Plantiff-Defendants 7-12 (Plantiff 3)
3. The one important thing which need be noticed with regard to this Nibandhan Patra is that this document which was executed in 1875 ignores the fact that Shashi Mohan's 1/5th share in Madhu-Sudan's estate had several years before devolved on the mother Shyampeari and practically ignores Shyampeari's interest in the estate. This brings us to the consideration of the Nadabinama which was executed by Shympeari in favour of Mohini Mohan as Karta of the joint family on 29th September 1875: See Ex. A printed at p. 21 of the second part of the paper book. It is important to notice in connection with this document that there is a recital in this document of the will of Madhusudan, more particularly of the fact that Mohini Mohan, the eldest son, being capable, obtained a certificate from the District Judge of Dacca under Act 27 of 1860 according to the terms of the Will and had been in possession enjoying, managing and acting as Karta of all the moveable and immoveable properties left by Madhusudan. There is a further statement that Mohini Mohan and other brothers who were alive were the real heirs of Madhusudan Das, but according to the Hindu. Shastras Shyampeari was entitled to a right of enjoying her shares in the estate left by her deceased son during her lifetime and the following clause may be quoted in extenso; because it will bear on another question, namely, that this document had the effect of a family arrangement apart from its being a deed of release. That clause is to the following effect:
I having accordingly applied for obtaining a certificate under Section 27 of 1860, in respect of that share, my application was rejected up to the High Court, and the properties have remained in your possession and enjoyment and under your management. Although, being a Pardanashin woman of a respectable family, I was unable to carry on management, yet being, led by the evil advice of mischievous persons, I at times expressed a desire for instituting a title suit in Court for the share of the said deceased son and thus caused pain to the good heart of you, my son, born of my own womb, and as you are dissatisfied on account of that,. I am in great uneasiness of mind.
4. Then follows the clause by which she purports to give up the right of enjoyment which she had in respect of the share left by the deceased son in the properties mentioned in the document as well as in such properties as may in future be acquired with the profits thereto on condition of her getting a Moshahara or monthly allowance on and from the time of execution of the document till the end of her life, at the rate of Rs. 150 at a lump per month out of the share left by the deceased son. The next clause is to the following effect:
Therefore being in full possession of my senses and out of my own accord, I give up, by this Nadabi (Release) whatever rights of enjoyment I have or had under the Sastras, in the share left by the deceased sons, on the aforesaid terms. Save and except getting this fixed monthly allowance in respect of the share of the said deceased son, I shall never be entitled to file any suit in Court, demanding any accounts, etc.,for the past and making any sort of claims, etc.,for the future.
5. The plaintiffs base their claim on the contention that this document as construed does not amount to surrender of Shyampeari's interest in the property which she inherited from her son Sashi Mohan. The contention of the plaintiffs both here as also in the Court below is that it was not a surrender of her entire interest, but it was merely a transfer of the right of management to the eldest son. It was further contended that the surrender, even if it be assumed to be of the entire interest of Shyampeari in her son's estate, was not right in form as it was in favour of only the eldest son Mohini Mohan who was only one of the four reversioners alive at the time of the execution of the document. The deed was also attacked on the ground that it was not a deed of surrender as there was a reservation of an allowance of Rs. 150 in a lump per month which is something very distinct from the reservation of certain portion of the estate for maintenance of the limited owner. It was therefore, contended that as this was not a deed which, in accordance with the Hindu Law was operative as a deed of surrender on the death of Shyampeari which happened on 16th November 1918, the property would revert to the reversioners. Motilal Das, the father of plaintiff 3, was one of such reversioners he having died on 24th October 1925 and plaintiffs 1 and 2 are said to be trustees for plaintiff 3. On the other hand the contentions of defendants, now respondents, have been that this deed of 1877 is a deed of surrender within the meaning of the Hindu Law and had the effect of extinguishing the right of Shyampeari in her son Sashi Mohan's estate.
6. In the alternative it was pleaded that even if it was not operative as a deed of surrender she being a limited owner under the Hindu Law the transaction could be upheld or sustained on the ground of this being a family arrangement and that the consideration for this family arrangement was the settlement of some dispute and it is said that the settlement of doubtful claims had been held to be a sufficient consideration for such an agreement, a family arrangement. The Subordinate Judge has accepted both these contentions urged on behalf of the defendants and has accordingly dismissed the plaintiffs' suit.
7. In appeal before us Mr. Gupta, who appears for the plaintiffs has raised the contention that the legal effect of the transaction of 1877, Ex. A, was not that it was meant to be a deed of surrender and relinquishment and so as to accelerate the estate for the benefit of the next reversioner, but that this was really a deed transferring the management of the estate to Mohini Mohan during the lifetime of Shyampeari. He has based this contention on certain words in the documents to which we shall have to refer presently. He has further contended that even assuming that there was an extinction of the rights of Shyampeari in her son's estate by the terms of the deed, the deed in law cannot operate as a relinquishment of her rights in her son's estate because in consideration of the deed a portion of the usufruct of the property was retained by the limited owner, the Hindu mother Shyampeari. This transaction was further attacked on the ground that it was not in favour of the entire body of reversioners for the time being. It was only in favour of one of the sons who was one of the several reversioners and therefore it offends against the rule of the Hindu law that the surrender in order to be effective must be in favour of the entire body of reversioners. On the question of the family arrangement it was argued that there was no dispute between the parties, there was no settlement of doubtful claims and therefore there was no necessity to make the family arrangement valid. It is necessary to determine each of these two contentions separately. With regard to the first contention that this was merely a deed of arrangement concerning management and that this was really a deed of transfer transferring the management to Mohini Mohan we have referred to the terms of Ex. A and stress was laid on the following expression in the document.
Whereas my sons, yourself and others, are the real heirs and owners of the share left by the said deceased son, and whereas I am never myself capable of managing the same without (the help of) those appointed to act as karta of the estate left by my husband, namely, yourself and others, I proposed to give up the right of enjoyment which I have and had in respect of the share left by the said deceased son.
8. Stress was also laid on another passage of the document, namely:
Therefore being in full possession of my senses and out of my own accord, I give up, by this nadabi (release), whatever rights of enjoyment I have or had under the Sastras, in the share left by the deceased sons.
9. It has been argued and very strenuously that she had only a right of enjoyment and that she was only parting with the right to enjoy this property during her lifetime, in other words by this document she was only surrendering the right to manage this property as a limited owner. It is not possible to accede to this contention. In this connexion it has to be remembered that the exact nature of a Hindu widow's or a Hindu daughter's or a Hindu mother's estate was not properly understood in the year 1877. But some Hindu widow's estate was regarded as an estate for life as is understood in English law and consequently expressions regarding the rights of a Hindu widow in her husband's estate being merely synonymous with the right of enjoyment for life were used. In that view the Bengali expression of the right to enjoy upa bhoger je sathwa chila would correctly represent her rights. That there was some misapprehension as to the exact nature of the rights of a Hindu widow in 1877 was recognized by their Lordships of the Judicial Committee of the Privy Council in Moniram Kolita v. Keri Kolitani (1880) 5 Cal 776, at p. 789, where their Lordships pointed out that a widow who succeeds to the estate of her husband in default of male issue, whether she succeeds by inheritance or survivorship, does not take a mere life interest in the property. And the whole estate is for the time vested in her absolutely for some purposes, though in some respects for only a qualified interest and that she holds an estate of inheritance to herself and the heirs of her husband.
10. It is not surprising therefore that in this document which was executed in the Mufassil in 1877 when the conveyancing was very little known, expression like the right of enjoyment of a Hindu widow or other females with limited rights was described as her sole right. A Hindu widow or a Hindu daughter or a Hindu mother represents the last male owner of an estate fully, for some purposes and it would not be right to describe her right as a right of enjoying her husband's estate now that her rights are properly understood. It was not so in 1877. In this connexion one has to remember that it was the intention of Shyampeari to surrender her rights in her son's estate is evidenced by another important event which happened during her lifetime about 6 (six) years after the execution of this document. That it was not a deed of transference of management in favour of Mohini Mohan would appear clear from the certified copy of the Register of Suits in the 2nd Court of the Subordinate Judge of Dacca relating to Suit No. 85 of 1883. See Ex. 8 printed at pp. 36 to 43 of the second part of the paper book. There Shyampeari was suing for a monthly allowance not only against Mohini but also against the other two sons of Madhusudan Das, namely Lal Mohan and Kshetra Mohan, and also against Gobinda Rani, the widow of the third son Radhika Mohan. This would show that she understood clearly enough that all that she could get from the surviving sons of Madhu Sudan, to whom by reason of this deed the entire interest of Sashi Mohan in the estate passed, was the monthly allowance of Rs. 150. This lady Shyampeari lived for nearly 41 years after the execution of this deed and it is a significant circumstance that during this long period she took up the position which showed that she had nothing to do with Sashi Mohan's estate and all that she was entitled to was the monthly allowance for which she from time to time asserted her claim.
11. It is next said that this deed does not operate as an absolute relinquishment of her rights because a substantial portion of the usufruct of the properties was reserved for her, and the argument turns on the expression 'Moshahara' as used in this document. It is said that the the word 'Moshahara' does not mean maintenance and if this contention is right it is contended that where anything else than maintenance is reserved by a deed which purports to be a deed of surrender under the authorities the deed of surrender must be held to be invalid. It is no doubt true that in some of the recent decisions of their Lordships of the Judicial Committee of the Privy Council deeds of surrender have been upheld where small portions have been reserved for maintenance of a limited owner be she a Hindu widow or a Hindu mother or a Hindu daughter. We may refer in this connexion to the case of Sureshwar Misser v. Maheshrani Misrain 1921 P C 107. In that case small portions of land were conveyed to the widowed mother for maintenance and it was held that that circumstance did not affect the validity of the deed of surrender. In that case Lord Dunedin observed as follows:
The conveyance of small portions of land to the widowed mother was unobjectionable, as it was only for maintenance.
12. That has been the trend of the decisions of their Lordships of the Judicial Committee. The question therefore turns as to whether this expression as used in this document is to be regarded as maintenance allowance. In this connexion we may refer to a contemporaneous document which was executed on the same date, namely, the Ekrarnama executed by Mohini in favour of Shyampeari Ex. 1. (See p. 15 of the second part of the paper book). Towards the end of that document there is this recital which is important to notice in this connexion:
Whereas, in father's will, there is permission (provision) for maintaining you and the sisters so long as we are capable, and whereas you have by a Nadabi (deed of release) renounced all claims and demands regarding the enjoyment of the share left by the deceased brother Sashi Mohan, for your life, and have desired to receive a sum of Rs. 150 (one hundred and fifty rupees) in lump per month, from the present month up till the end of your life, out of the share of the said deceased brother, I, under the terms of the will of my deceased father and on the strength of my position as Karta of the estate left by him, of my own accord and in full possession of my senses execute this Ekrarnama and provide that so long as you live you shall get a sum of Rs. 150 (one hundred and fifty rupees) in lump per month out of the said share; you shall not be entitled to give away or sell the same to anyone, myself or the persons acting as Karta after we shall pay up the said money to you every month.
13. Reading the two documents together there can be doubt that Rs. 150 was being given to this lady in lieu of maintenance. It is true that the word 'Moshahara' means monthly share of allowance (See Wilson's Glossary); but it has to be read having regard to Ex. 1, and having regard to the circumstance, namely, that although a provision was made in their father's will for the maintenance of Shyampeari, as a matter of fact she received no maintenance from after the death of Madhu Sudan up to the time of the execution of this document as was directed by the will of Madhu Sudan. The amount of Rs. 150 per month was really a suitable maintenance, having regard to the value and income of the estate and it emerged in the course of discussion before us that there are papers on the record to show that the value of the share of Sashi Mohan's estate is about Rs. 2,36,000. See Ex. L, the certified copy of decree in Title Suit No. 73 of 1883 of the Second Court of the Subordinate Judge of Dacca between Sreemati Gobinda Rani Dassya, the widow of the late Radhika Mohan Das, on the one hand, and Mohini Mohan Das, Lal Mohan Das, and Kshetra Mohan Das on the other. This document is printed at p. 32 of the second part of the paper book. This is what is stated in that document
The plaintiff (Gobindarani) has therefore instituted this suit for recovery of possession of a 5 a Section 6 gd Section 2 krts. share of the ancestral as well as acquired immoveable properties of her husband, valued at Rs. 2,36,000 and a 4 as. share of the moveable properties or in default thereof for the value thereof amounting to Rs. 15,000 and for getting Nikash (accounts), which is valued at Rs. 89,000 in all for Rupees 3,40,000 (three lacs and forty thousand rupees.)
14. From this it appears that the value of 5 aSection 6 gds. would be over Rs. 15,000 which would fetch an income of nearly Rs. 600 per month. The maintenance was therefore a suitable maintenance to which she was entitled as heir of the estate of Sasi Mohan.
15. The next ground on which this deed is attacked is that it was not a surrender in favour of all the reversioners. If that fact could be established undoubtedly the appellant should succeed, for it is now established on high authority that the surrender must be in favour of all the reversioners for the time being at the time of the execution of the document. See the cases of Rangaswami Goundan v. Nachiappa Goundan 1918 P C 196 and Sureshwar Misser v. Maheshrani Misrain 1921 P C 107, and the recent decision in Ram Krishna Prodhan v. Sm. Kousalya Mani Dasi 1935 Cal 689. It is true that on the face of the document the deed of relinquishment appears to be in favour of Mohini, but he is described there in his capacity as karta and that the intention was to transfer the interest of Sashi Mohan's estate in favour of all, would be apparent also from the document Ex. 8, the certified copy of extract from the Register of suits of the second Court of the Subordinate Judge, Dacca, relating to Suit No. 85 of 1883, that liability of paying the mosahara allowance was imposed not on Mohini Mohan alone but also on the other brothers Lal Mohan and Kshetro Mohan as also on Gobindarani, the widow of Radhika Mohan, Radhika Mohan having died in the meantime. It would also appear from the claim of Gobinda Rani (Ex. L printed at p. 32 of the second part of the paper book) that she was treating the document of 1272 B.S., as a document in favour of all the reversioners. See para. 12, p. 34 of the second part of the paper book:
(My) mother Syampeary Dasya got a 1/5th share of the entire estate by virtue of inheritance from her deceased son Sasi Mohan Das and she having given up the same in favour of the plaintiff's husband and us, the defendants, by a nadabi (deed of release) executed in my favour on 14th Ashin 1284 B.S. the plaintiffs' husband's share that the plaintiff's title is established. In lieu of the said nadabi (release) I, on behalf of myself and all my brothers, agreed to pay a monthly allowance of Rs. 150 one hundred and fifty rupees, to my said mother Syampeary Dasya till the end of her life by executing a deed of ikrar (agreement) in her favour on the said date and am bound to pay the same.
16. This is really a statement taken from the particulars of the petition of defendant 1, that is Mohini Mohan Das, so that Mohini and other parties understood clearly enough that the deed was operative in favour of all the reversioners for the time being. We agree with the Subordinate Judge that this was a bona fide deed of surrender, that she got Rs. 150 per month as a sort of allowance or maintenance, and reserving such allowance she absolutely renounced her legitimate share in the estate. It was not a decree to divide the estate between the heirs and the reversioners for the time being. Whatever doubts there may be with regard to the transaction as contended for on behalf of the appellant in substance and disregarding the form of Ex. A it seems to us that there was a complete self-effacement of the widow's share which precluded her from asserting any further claim to the estate of her son. The execution of Ex. A and the other ikrarnama which really forms part of the same transaction on 29th September 1877 followed by the acceptance for nearly 41 years of maintenance under the terms of these documents amounted in our opinion to a complete surrender by Shyampeari of her interest in her son's estate in favour of the entire body of reversioners. We may refer in this connexion to certain observations of their Lordships of the Judicial Committee of the Privy Council in Bhagwat Koer v. Dhanukdhari Prasad Singh 1919 P C 75, where the transfer was made in the circumstances somewhat similar to the present. There their Lordships point out thus:
In the present case there was indeed no formal surrender by the widow of her estate, but there was an express agreement, binding upon her, that for considerations which appeared to be sufficient she would abandon the claim which at the time she had a good right to make and would have no right, claim or demand in respect of the estate of her late husband. It is true that the documents were drawn up on the_footing not of a surrender of an acknowledged right but of an admission that the right did not exist; but in substance, and disregarding the form, there was a complete self-effacement by the widow which precluded her from asserting any further claim to the estate. The question is no doubt one of difficulty, but upon the whole their Lordships have come to the conclusion that the execution of the two ekrarnamas, followed by the acceptance for 30 years of maintenance under the terms of those documents, amounted to a complete relinquishment by Anandi Koer of her estate in favour of Mahabir, and accordingly that the title of Mahabir's representatives is established and the plaintiff's action should have been dismissed on this ground.
17. The contention, therefore, which challenges this deed as not being a deed of surrender valid under the Hindu law, must fail. Mr. Chakravarty has sought to support this deed as a deed of family arrangement. This is the view which has also been taken by the Subordinate Judge and we agree.. It appears further that there was a dispute between the sons of Shyampeari with regard to the management of this estate and it appears from the recitals in Ex. A that she unsuccessfully made an application for obtaining a certificate in respect of Sashi Mohan's share-her application having been rejected up to the High Court and that she intended to institute a title suit in respect of the share of her deceased son. In order to avoid that and in settlement of that dispute this arrangement of 1877 was entered into. It is difficult at this distance of time to get direct evidence of the circumstances under which the document was executed. It appears that in order to avoid litigation she entered into the family arrangement and surrendered the entire interest in the estate that she had inherited from Sashi Mohan and got Rs. 150 a month which really meant a monthly allowance. The settlement of doubtful right is a sufficient consideration to support a family arrangement. This arrangement can also be supported as a family arrangement. The substantial grounds that have been urged on behalf of the appellant having failed the entire appeal must fail. The appeal is dismissed with costs.
18. I agree.