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Nagendrabala Dasee Vs. Panchanan Mourie - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1934Cal162,150Ind.Cas.42
AppellantNagendrabala Dasee
RespondentPanchanan Mourie
Cases ReferredJugal Kishore v. Jotindro Mohan Tagore
Excerpt:
- ameer ali, j.1. in this suit, the matter in issue is what was purchased at a sale held on 7th may 1893, in execution of a decree for costs dated 17th may 1891, that is to say before i was born. in one event i shall have to dispossess the present holders. that such a case can arise i regard as a blot on our legal system. the facts in outline are as follows:2. the premises in question, now known as 12/1, 12/2, umeshehandra datta lane, formed, at the date of sale (i.e., in 1893), the northern portion of 175, maniktala street. a man named brahmabishnu basak and his nephew, jadunath basak were entitled to this property in equal shares. the property was undivided. brahmabishnu basak died before 1890, leaving a widow kantamani. after his death, kantamani filed a suit (suit no. 61 of 1890).....
Judgment:

Ameer Ali, J.

1. In this suit, the matter in issue is what was purchased at a sale held on 7th May 1893, in execution of a decree for costs dated 17th May 1891, that is to say before I was born. In one event I shall have to dispossess the present holders. That such a case can arise I regard as a blot on our legal system. The facts in outline are as follows:

2. The premises in question, now known as 12/1, 12/2, Umeshehandra Datta Lane, formed, at the date of sale (i.e., in 1893), the northern portion of 175, Maniktala Street. A man named Brahmabishnu Basak and his nephew, Jadunath Basak were entitled to this property in equal Shares. The property was undivided. Brahmabishnu Basak died before 1890, leaving a widow Kantamani. After his death, Kantamani filed a suit (Suit No. 61 of 1890) against Jadunath for the recovery of two promissory notes for Rs. 1,000, alleging that these two promissory notes formed part of the estate of her deceased husband and that the endorsements in favour of the defendant, which purported to appear therein, were not genuine. In the plaint Kantamani described herself as 'the widow, heiress and 'administratrix' to the estate of Brahmabishnu Basak deceased. The suit was tried on evidence and the claim was dismissed. By the decree, dated 17th May 1891, which is Ex. A, it was decreed

that the suit is hereby dismissed and it is further ordered and decreed that the plaintiff does pay to the defendant his costs of this suit.

3. This decree for costs was assigned by Jadunath to one Satkarhi Pain. On 11th July 1891 Jadunath sold his half undivided share in the premises to the same Satkarhi for Rs. 3,500. The allocatur for costs was issued on 12th December 1891, amounting to Rs. 1,763-12-0. Application for execution was made by Satkarhi by a tabular statement, dated 27th May 1892. In this the property to be attached is/described as 'half share of plaintiff Kantamani as widow.' On 13th July 1892, there was a prohibitory order attaching 'half share of the plaintiff as the widow.' On 1st June 1893, the order for sale was made and in this the property to be sold is described in the schedule as

all that undivided half part or share of the said plaintiff Kantamani as the widow of Brahmabishnu Basak of and in the premises to question.

4. On 15th September 1893, the sale proclamation issued, which mentioned simply 'the undivided half share of the plaintiff Kantamani in the following property.' On 7th December 1893, the sale was held and one Pulinbihari Pain, brother of Satkarhi Pain, bought the property for Rs. 100. On 1st May 1894, by a conveyance of that date, Satkarhi Pain and Pulinbihari Pain sold their respective undivided half shares in the property to a lady, Manmohini Dasee, for Rs. 6,200. There is a covenant for title as regards Satkarhi Pain's half, but no covenant for title in respect of the share purchased by Pulinbihari Pain. On 1st July 1896, Manmohini Dasee sold one half, that is, Jadu's half bought from Satkarhi Pain, to Prankrishna Sen, the property still being undivided. There was a partition suit, being Suit No. 668 of 1896, and the southern half was allotted to Prankrishna Sen and the northern portion, that is to say, Kantamani's portion, was allotted to Manmohini and renumbered No. 12/1 and 12/2, Umesh-chandra Datta Lane. On 2nd September 1897, Manmohini sold to Ramchandra for Rs. 3,000. On 21st March 1898, Ramchandra sold to Dharamdas Ghosh for Rs. 2,650. On 29th April 1898, he sold it to a lady named Dhanmohini Dasee for Rs. 3,778. In addition to the conveyance, there was a bond of a indemnity in the sum of Rs. 5,000 in respect of title.

5. Dhanmohini carried out substantial repairs and alterations to the property, to which I shall again refer. She died in 1900, leaving, as far as I remember, a will. At any rate, the property descended to Ramchandra Ghosh and through him to Nistarini Dasee and through her to the three sons of Harasundari Dasee, Nagendra Mourie Atulkrishna Mourie, and Saratchandra Mourie. Nagendra Mourie died in 1930, leaving four sons, two of whom are minors. Atulkrishna Mouire is still alive. Saratchandra Mourie mortgaged his share on 5th December 1927 to Ratanlal Gupta. On 3rd January 1931 the property was put up for sale in the mortgage suit and was bought by the defendant Charupanna Seal. On 29th September 1927 Kantamani died. On 9th February 1930 there was a letter of claim (the receipt of which has not been admitted) by her daughter, Nagendrabala, the present plaintiff. On 27th August 1930 this suit was filed for recovery of the property on the ground that what had been bought by Bipinbehari Pain was only the ' widow's interest ' and not the entire estate.' These expressions I retain throughout this judgment.

6. That such a question can at all arise is due to two causes: (a) In the decree order for sale proclamation, etc., it has not been the practice to specify what is put up for sale, i.e., whether a 'widow's interest' or 'entire estate'; (b) it has been assumed that the formula used in the order for sale proclamation, etc., 'right, title and interest of the plaintiff' (oven where described as widow) is ambiguous, i.e, may indicate either widow's interest' or 'entire estate'.

7. When therefore this ambiguity arises, it is necessary to ascertain which of these two meanings was intended. As early as 1876, in Baijun Doobey v. Brij Bhookun Lall (1875) 1 Cal 133 the rule was laid down in these terms by the Board: ' What was liable to be sold and what in fact was sold? ' The first test (except in its final stages) is a question of law. The second test is a question of fact. The first test, as I have said, is mainly a, question of law. There is a great deal of it. I propose first to mention, in order of date, the authorities cited (together with certain connected cases) and then to state in the form of propositions the effect of the authorities as I read them. We begin with Katama Natchier v. Rajah of Shivagunga (1863) 9 MIA 539(PC), the judgment of Vice-Chancellor Turner at p. 605 -nature and effect of decree against the widow in a suit in respect of the estate. Nugenderchunder Ghose v. Kaminee Dossee (1867) 11 MIA 241 (PC), rent accrued after death of husband personal decree. Form of suit. Held that the decree against the widow does not affect the reversion. At p. 267, are observations in the nature of a proviso to the effect

that the Board leave unimpaired the general rule that in a suit brought by a third person the object of which is to recover, or to charge an estate of which a Hindu widow is the proprietress, she will represent and protect the estate as well in respect of her own as of the reversionary interest.

8. For purposes of convenience I will refer to these observations as ' the proviso ' to Nugenderchunder v. Kaminee Dossee (1867) 11 MIA 241 (PC).

9. Bistobehari Sahoy v. Baijnath Prasad (1871) 16 WR 49. There was a sale of ' the right, title and interest ' of the widow under what I refer to throughout as a ' personal decree '. It was held notwithstanding, that if the debt, upon which the decree was founded, be one for necessity a sale in pursuance of such decree would or might pass the 'entire estate'.

10. General Manager of the Raj Durbunga v. Ramaput Sing (1872) 14 MIA 605. Suit for rent which accrued, during the husband's lifetime. Held that in such a case, the suit is really against the estate and the widow is in effect a representative. The decree is therefore against the estate and binds it. Mohima Chunder v. Ram Kishore (1875) 15 Beng LR 142. This was a case of rent accruing after the death of the husband and therefore similar to the case in Nugenderchunder v. Kaminee Dossee (1867) 11 MIA 241 (PC). There was a discussion as to necessity and it was held that necessity was not established. That being so, the decree was held not to bind the rever-sioner. The importance of the decision is twofold: (a) It shows that ' necessity ' and ' representation ' are independent, (b) It adopts and lays down as an affirmative proposition the proviso to Nugenderchunder v. Kaminee Dossee (1867) 11 MIA 241 (PC) at p, 260. Baijun Doobey v. Brij Bhoohun (1875) 1 Cal 133. This was a decree for maintenance accruing after the death of the husband, There was therefore no question of necessity. There was sale of the ' right title and interest of the defendant. ' In this case at p. 139, the test which I have already mentioned was formulated: 'What was liable to be sold and what in fact was sold?

11. Ramkishore Chukerbutty v. Kally-kanto Chukerbutty (1880) 6 Cal 479. This was a suit by a widow to recover portion of the estate of her deceased husband. It was dismissed with costs and the 'right title and interest' of the widow was put up for sale. Following the proviso to Nugenderchunder v. Kaminee Dossee (1867) 11 MIA 241 (PC),' the Court held that, as the suit had been in regard to the estate, the decree for costs was therefore binding on the estate. Jugul Kishore v. Jotendro Mohun Tagore (1884) 10 Cal 985. Decree for mesne profits and costs against a widow, one of the parties to a suit in regard to the estate. The 'right, title and interest' of the widow was put up for sale and the question dealt with and determined was, what was sold. Judgment of Garth, C.J., is at p. 70 (of 11 I.A.). Ruling of Board (Sir Barnes Peacock) at pp. 73 and 74 (of 11 I. A.). The test laid down is as follows:

There are many oases in which when the right, title and interest of the widow is sold, the whole interest in the estate passes. In other cases the whole interest does not pass. The case depends upon the nature of the suit in which the execution issues.

12. In other words, if it is a suit such as is referred to in 'the proviso to Nugenderchunder v. Kaminee Dossee (1867) 11 MIA 241 (PC)' the entire estate passes. Nanomi Babuasin v. Modhun Mohun (1885) 15 Cal 21. and Pettachi Chettiar v. Sangili Vira (1887) 10 Mad 211. These cases related to a Hindu father's co-parcenary interest (assumed in this respect to be indistinguishable from a widow's interest). In each case the sale of the right, title and interest' of the father is described as creating an ambiguity, to be resolved by the answer to the following questions:

What the purchaser bargained and paid for? Not what the Court could have sold but what was in fact sold? (Sir Barnes Peacock).

13. Dinamoni Chaudhurani v. Elahudad Khan (1903) 7 CWN 678. In this case the widow had wrongly defended a suit by a stranger in regard to property alleged by her to form part of the estate. Nevertheless the decree for costs against her was held to be binding on the estate. Radha Kissen v. Nauratan Lall (1907) 6 CLJ 490. Judgment of Sir Asutosh Mookerjee at p. 519. The principal question in this case was one of necessity, the suit being for recovery of moneys lent to the widow. As I read the case (especially at p. 519), the question of necessity and the question of 'prospective representation' are dealt with as distinct matters. By which I mean this that in a suit such as is referred to in 'the proviso of Nugenderchunder v. Kaminee Dossee (1867) 11 MIA 241 (PC)' there is no question of having to prove necessity. Either the suit is one of the nature described or it is not.

14. Braja Nath Pal v. Jogeswar Bagchi (1909) 9 CLJ 346. The matter in issue was as in Jugul Kishore v. Jotendro Mohun, Tagore (1884) 10 Cal 985 what passed by the sale of the 'right, title and interest' of a Hindu widow in execution of a decree' for costs. At various places, at pp. 349, 350 and 351, Sir Asutosh Mookerjee referred to the merits of the widow's suit or claim, in contrast to the case in Ramkishore Chuckerbutty v. Kallykanto Chuckerbutty (1880) 6 Cal 479, where the claim was said to be unfounded. He compared the position of a Hindu widow to that of a shebait and later, at p. 352, he compared the position of a Hindu widow to that of a trustee. At p. 353, the test is laid down as follows:

The principle is that in order to determine the exact interest which passes at a gale in execution of a decree against a Hindu widow * * * the test to be applied is whether the suit in which the sale was directed was brought against! the widow upon a cause of action personal to herself or one which affected the whole inheritance of the property in suit.

15. That is to say the answer is to be found in the nature of the suit.

16. Veerabadra Aiyar v. Marudaga Nachiar (1911) 34 Mad 188. 'Personal decree' for loans to the widow. If the decree is founded upon a debt incurred for necessity, the entire estate could have been sold: The question for decision is what was sold, Risal Singh v. Balwant Singh AIR 1918 PC 87. Following the first case in this list Katama, Natchier v. Raja of Shivagunga (1863) 9 MIA 539(PC):

A decree fairly and properly obtained in regard to the estate is, in the absence of fraud or collusion, binding on the reversionary heir.

17. The result of the above cases stated in, the form of propositions appears to ma as follows:

Proposition 1.-Debt of the husband. In a suit against a widow founded upon her husband's debt the widow represents her husband's estate. This is representation in the English sense or 'retrospective representation.''

Rule.- The decree is against the estate.

Example. - General Manager of the Raj Durbunga v. Ramaput Singh (1872) 14 MIA 605.

Proposition 2.-Debt of widow. Suit against a widow on her own debt.

Rule.-Estate not liable.

Examples.-Mohima Chunder v. Ram Kishore (1875) 15 Beng LR 142 and Baijun Doobey v. 'Brij Bhookun Lall (1875) 1 Cal 133.

Exception to rule.-Necessity.

Examples.-Bistobehari Sahoy v. Baijnath Prasad (1871) 16 WR 49, Mohima Chunder v. Ram Kishore (1875) 15 Beng LR 142 and Radha Kissen v. Nauratan Lall (1907) 6 CLJ 490.

Proposition 3. - Claim in regard to estate. Suit against a widow 'in regard to the estate,' i.e., in which the 'widow is representing and protecting the estate in respect of the reversionary estate: Mohima Chunder v. Ram Kishore (1875) 15 Beng LR 142.

18. Representation in a secondary sense or 'prospective representation.

Rule.-Decree binding on reversionary heirs.

Examples.-Katama Naticehier v. Raja of Shivagunga (1863) 9 MIA 539(PC) and Risal Singh.v. Balwant Singh AIR 1918 PC 87.

Exception to rule.-Fraud and collusion.

Example.-Risal Singh v. Balwant Singh AIR 1918 PC 87.

Proposition 4.-Claim for costs.

19. 'Costs' constitute a debt created by the decree and which accrues at the date of the decree. A decree for costs Is usually regarded as accessory and supplemental to the main decree. The debt in question may be incurred in a suit respectively of the nature described in propositions 1, 2 and 3. In suits of the nature described in propositions 1 and 2, there is no difficulty in formulating the rule, i.e., in the first class of case, the estate will be bound. In the second class of case, the estate will not be bound unless necessity is established. In suits of the class described in proposition 3 (the case now before us) the matter is more complicated. I believe however the rule to be analogous, the decree for costs being binding on the estate where the main decree is binding on the estate, i.e., in the absence of fraud or collusion. This proposition is not accepted by counsel for the defendants, who has contended that the conditions under which the estate can be affected by a decree for costs against the widow are more restricted.

20. He contended: (i) That there is a difference between the case of a suit by the widow and against the widow (ii) That, in order to affect the estate, a suit brought by the widow must be shown to have been beneficial. (iii) Alternatively, that the estate will only be affected in circumstances under which in England costs of a trustee would be payable out of the estate. As regards point (1), (disregarding any special rule applicable to trustees in England suing without leave of the Court), it appears to me that, on principle, no logical distinction can be made between protecting the estate by attack and by defence, i.e., by suit to recover possession or resistance to a claim to possession.

21. As regards point (2), in support of which counsel for the defendant sought to introduoe principles of 'necessity,' it appears to me firstly, that such principles are inappropriate, e.g., how can the question of 'honest enquiry' at all arise? Secondly, I find no trace of 'necessity for necessity' in the authorities. In Nugenderchunder Ghose v. Kaminee Dossee (1867) 11 MIA 241 (PC), Mohima Chunder v. Bam Kishore (1875) 15 Beng LR 142 and Radha Kissen v. Nauratan Lall (1907) 6 CLJ 490 the two matters necessity and 'prospective representation' are treated as self contained and mutually independent. The question of representation need not be agitated if there is in fact necessity. If there is no necessity there remains the further question-was the suit of the nature desoribed in proposition 3? In support of the third contention, counsel for the defendant relied upon certain observations of Sir Asutosh Mookerjee in Braja Nath Pal v. Jogeswar Bagchi (1909) 9 CLJ 346. In this case, Sir Asutosh Mookerjee, before formulating (at p. 353) the test already quoted, compared the position of a Hindu widow to that of trustee under English law. He concluded (p. 353)

that the position of a Hindu widow in respect of costs was not inferior to that of a trustee.

22. It is clear from the guarded language used, that Sir Asutosh Mookerjee was well aware of the defects of the analogy, Others not so fully acquainted with the English system may however be misled, especially having regard to certain expressions used by Sir Asutosh Mookerjee on the previous page (352) in describing the position of trustees:

The principle is that in oases of misconduct, where trustees are decreed to pay the costs of the suit, they cannot charge the expenses to the trust fund, on the ground that, as the misconduct was personal, the costs are personal also, and must be borne by them personally. Prima facie therefore where costs are given against parties who are trustees, they must be taken to have been given against them as trustees, and not as individuals. We may refer also in this connexion to the case of Brigel v. Tug River Coal Co., (1896) 73 Fed Rep 13. There certain trustees had instituted an action in respect of properties which they held as trustees. The Court of first instance made a decree in their favour. The Court of appeal reversed the decision on the ground that the first Court had no jurisdiction to take cognizance of the suit and allowed costs to the defendants as against the plaintiffs. The question arose, whether this was a decree against the plaintiffs in their character as trustees, or against them personally. It was ruled that the decree must be taken to have been made against them as trustees, on the ground that their standing in the Court was as trustees and as they had no other standing, the decree could not be taken to have been made against them in their personal capacity.

23. In my view, the language used in the above-quoted passage is liable to perpetuate the misconception of the position of trustees prevalent in this Court. It has been, to my knowledge, the practice in suits by strangers against trustees to pass decrees against the defendants, 'as trustees,' 'limited to the trust' 'estate,' 'with costs to come out of the estate' and so forth. I have myself done so. This misconception I believe to be due to two causes: (i) failure to distinguish between trustee and qualified owner and assimilation of trusteeship to shebaitship; (ii) failure to distinguish between two different classes of proceedings, i.e., between actions between stranger and trustee and actions in which the fund is before the Court and the beneficial interest represented, such as administration suits.

24. I will deal with the second point first. In England, as regards costs, different principles are applied in the two classes of proceedings mentioned. The matter I think is made most clear by two passages in Daniel's Chancery Practice and one authority. In Daniel's Chancery Practice, Edn. 8, Vol. 2, p. 1028, is the following passage:

The general rule, which gives the costs of the action to the victorious party, and throws them upon the unsuccessful party, applies equally to cases in which the parties are suing or defending in autre droit and to those in which they are sui juris. Therefore executors, administrators,' trustees, or trustees in bankrutcy, instituting or defending, in those capacities actions against strangers to their trust, are subject to the same rules as to costs as they would be if they were suing or defending in their own right .... The question whether a party who sues, or defends in autre droit, and is unsuccessful, shall be reimbursed his costs out of the estate which he represents, or in respect of which he is a trustee, is a totally distinct one, and will be referred to hereafter, when we come to treat of cases in which costs are payable out of the fund which is the subject of litigation.

25. The chapter which relates to costs in a case where the fund is before the Court begins at p. 1054. Turning to p. 1065 which relates to this particular class of case, it reads

When it is said that personal representatives, and others bearing the character of trustees, are entitled to their costs out of the fund or estate which is the subject of the action, the rule must be understood as applying strictly between themselves aud their cestuis que trust. In actions between them and those who are strangers to the trust the ordinary rules as to costs prevail ; though if a trustee or personal representative institutes or defends an action in respect of his trust estate, he may reimburse himself out of that estate any sums he may have expended properly in such action.

26. Thus, in the first class of case, costs are regarded simply as charges and expenses incurred by the trustee, in respect of which (in accordance with the ordinary principles relating to indemnity) he may or may not be entitled to be indemnified. In the second class of case (as to which see R.S.C.O. 65. Rule 1) generally speaking costs of the trustees are payable out of the fund in Court unless misconduct is established. The matter is made very clear by the judgment of Lindley, L.J., and Bowen, L. J., in In re Reddoe, Dowries v. Cottam (1893) 1 Ch 547.

27. In the first class of case therefore the only way by which, in respect of costs, the trust fund may be made available to a stranger is through the trustee's right, of indemnity by applying the principle of subrogation. For a short and clear, discussion on , this topic, see Brett's; Leading Cases in Equity, pp. 207 and 211: see also Mackintosh Burn Ltd. v. Shiva-kali Kumar : AIR1933Cal668 . The question of in-, demnity cannot be decided in the actual suit. It must be decided vis-a-vis the beneficiaries and, as will be seen in In re England's Settlement Trusts. Dobb v. England (1918) 1 Ch 24, this is usually done upon originating summons. This authority will also illustrate the extreme strictness with which the English Courts allow the right of indemnity to be applied. In the notes, Section D to Rule 1, 0. 65 in the Red Book, the rule is stated in the following terms:

If a trustee bring8 or defends an action unsuccessfully it is for him to show that the costs so incurred were properly incurred.

28. Returning to the first point and to the passage quoted from Braja Nath Pal v. Joggeswar Bagchi (1909) 9 CLJ 346 at p. 352 the grounds of my criticism will, I think, already have become partially apparent. As I understand the English law it is erroneous, in connexion with actions by strangers against trustees to speak of such actions or the decrees made therein as 'personal' or as brought or made against them 'as trustees and not as individuals' or in the character of trustees,' or in their 'personal capacity.' If an action is brought against A B in connection with the trust, of which A B is the trustee, he is sued as legal owner. In such action, A B is trustee and nothing else. On the other hand, the decree is against him and no one else. In other words, in a suit of the nature referred to there is only one kind of suit and one kind of decree. There is no room for ambiguity. The only point of divergence is at a later stage, i.e., when A B claims the right to recoup himself Out of the trust estate. I propose' to avoid discussing the position of a shebait or the effect of a decree in a suit against a she-bait, but, bearing the above principles in mind, I desire to refer shortly to the position of a Hindu widow. This appears to me as a matter of legal theory to present a striking contrast to the position of a trustee.

29. The difficulty for anyone unacquainted with the Hindu system is enhanced by the fact that the commom English word 'widow' is used as a technical term for the purpose of designating a legal person or describing a legal status. In England the law has invented two owners or two kinds of ownership and two persons, trustee and beneficiary. In India there is one person. It is not merely that the surviving wife may happen to fill (as she often does in England) two capacities, that of trustee and beneficiary, but she is a 'Hindu widow,' a status which combines and comprises some of the elements of trusteeship and some of the elements of beneficial ownership. She is neither trustee nor beneficiary. She is legal owner, but in accordance with circumstances and the nature of her actions the limitations on her legal ownership are made to vary. She is not a representative in the English sense. In a secondary sense she represents the reversion so that finality may be obtained in actions brought during thai widow's life.

30. It follows therefore that a decree obtained by a stranger against a Hindu widow is by no means comparable to a decree obtained against a trustee. Compare again the common case of a surviving wife in England, A who is trustee and also tenant for life with that of a Hindu widow B. In the first case, the decree obtained by a stranger will be against A, A having a mere right of indemnity. A's beneficial interest will be liable to execution under the decree. In the case of the Hindu widow, the decree will be against B either as qualified owner or full owner.

31. The result is that, in my opinion, the analogy of suits and decrees against trustees together with the paraphernalia of indemnity and subrogation is not appropriate to proceedings against a Hindu widow. It does not, of course, necessarily follow that similar principles will not apply. There is parallelism in law as well as in science. But I am not satisfied that it is so. The process of indemnity and subrogation has no place in the Indian system and it appears to me that the English rules have developed from and been built upon that process. The rigidity of these rules would, in my opinion, be hardly fitting in the case of a Hindu widow. Finally, it appears to me upon the authorities that once the main test is applied with the result that the suit is found to be one the result of which is binding upon the reversioners, there is no room for any further discussion of the question whether the expenses of the suit were or were not properly incurred. The first test therefore has been passed. In this case the Court could have sold the entire estate. I now come to the second test: 'What did the Court in fact sell

32. I have already mentioned in order of date the main facts on which I propose to base my decision, to the effect that what was sold was the 'widow's interest.' My reasons are as follows: First of all, I should mention that I have read the transcript of the judgment upon which the decree of 1891 was based. Substantially the Court found the defence to be true and the claim false. This being the case the Court, had its mind been directed to the point, might well have considered it a suit the costs of which should not be borne by the reversion. But I do not think the question was ever considered and I do not therefore rely upon the contents of the judgment.

33. The documents, on the other hand, do appear to me to indicate that what was sold by the Court was the 'widow's interest.' Under the Code of 1859, S. 259 the root of the trouble, sea Jugal Kishore v. Jotindro Mohan Tagore (1884) 10 Cal 985, it is provided that the sale proclamation shall declare that the sale, 'extends only to the right, title and interest of the defendant in the property specified therein.' Personally I do not read this provision as meaning that the Court shall not indicate what is sold, e.g., 'widow's interest' or 'entire estate.' But that apparently was the view taken. In 1882 the section was changed, and I should conceive, deliberately. The rules however of this Court had already been framed, and Under Order 25, Rule 7, it is still inoumbent to state in the conditions of sale that only the right, title and interest, etc., is sold. The 'ambiguity' was thus perpetuated.

34. Be that as it may, what was attached under the tabular statement in this case was described in these words 'half-share of the plaintiff Kantamani as widow.' In the prohibitory order and in the order for sale 'half share of the plaintiff as widow.' What did that mean? I can understand a decree being made against X 'as widow' (I have already indicated my distaste for the adverb even in this connexion). But when it comes to a document relating to sale and the property sold is referred to as the share of so and so 'as widow,' it seems to me that it can only have one meaning and I think that meaning was 'limited interest.' The whole case turns on that. (Taking into consideration the other circumstances, his Lordship held that the second test was not passed. (The remaining portion of the judgment is not necessary for reporting.)


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