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Susheelasundaree Dasee Vs. Bishnupada De - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1933Cal622
AppellantSusheelasundaree Dasee
RespondentBishnupada De
Cases Referred and Fateh Sing v. Jogannath Bahhsh Singh
Excerpt:
- .....of this court in the case of mohendra nath v. baidya nath air 1922 cal 95 that a reversioner to a hindu widow's estate, who is entitled to the estate on the death of the widow, did not have 'any interest' in the tenure or holding voidable on the sale' within the meaning of s 170, c1. (3), ben. ten. act, as it stood before its amendment by bengal act 4 of 1928. it is sufficient, for our present purposes, to say that the learned chief justice, sir lancelot sanderson and chotzner, j., were dealing in that case with the provisions of the statute, where the words used were to the effect that the person, whose interest was voidable on the sale was entitled to come in and apply. the words, now used after the amendment are 'any person whose interests are affected by the sale' and the words are.....
Judgment:

Mitter, J.

1. This is an appeal from the order of the learned District Judge of Khulna, dated 3rd July 1931, affirming the order of the Munsif at Satkhira dated 16th July 1930. The circumstances which led to this litigation may be briefly stated thus: It appears that there was a tenure which belonged originally to one Anandaprasad Sadhukhan. That tenure was sold in execution of a decree for rent held under the Bengal Tenancy Act. Sarada and Annada were two uterine brothers, and Khagendra and Bhupendra were the stepbrothers of Sarada and Annada. Durlabhmani, against whom the rent decree was passed, was the widow of Annada, who is now dead. In the rent execution case an application was made under Section 174, Ben. Ten. Act, as now amended for the setting aside of the sale by one Bhishnupada, who claims to be the nephew of Annada that is his brother's son. An objection was raised by the auction-purchaser, Susheelasundaree, who is the appellant before us, that the application under Section 174 did not lie, as Bishnupada was not a person, whose interests were affected by the sale within the meaning of Section 174, Ben. Ten. Act, as amended by Bengal Act 4 of 1928. It was stated by the Munsif, who dealt with the matter in the first instance, that it was admitted that Bishnupada. was the reversioner and the Munsif accordingly set aside the sale the conditions for setting aside of the sale having been fulfilled by him.

2. An appeal was taken to the Court of the District Judge, who by his order, dated 4th May 1931, sent back the case to the Munsif for the purpose of enabling him to record evidence in respect of the assertion that Bishnupada was the reversionary heir, it being stated before the learned Judge that the Munsif had fallen into an error in holding that it was admitted before him that Bishnupada was the reversionary heir of the judgment-debtor, Durlabhmani. The case went back to the Munsif, who came to the conclusion that Bishnupada was the next reversioner he being the brother's son of Durlabhmani's husband, whereas the two stepbrothers of Durlabhmani's husband were not the preferential heirs under the Dayabhaga. school of Hindu law. The Munsif apparently relied upon the decision of Greaves, J., in the case of Sukhamayee Biswas v. Manoranjan Choudhury AIR 1926 Cal 428 and on a statement in Mr. Golapchandra Sarkar Shastri's Hindu Law, Edn. 6, 1927, pp. 519 and 520. The learned District Judge after considering the finding of the Munsif, also came to the conclusion that Bishnupada was the next reversionary heir and he consequently dismissed the appeal and set aside the sale. Against the concurrent decisions of the Courts below the present appeal has been brought and a preliminary objection has been taken to the hearing of the appeal on the ground that only one appeal is allowed, under the provisions of Section 174, Clause (5) as amended by the Act of 1928 and no second appeal lies. It is not necessary to decide this question in the view that we take of the merits of the appeal.

3. It has been contended on behalf of the appellant that the Munsif was clearly in error in coming to the conclusion that Bishnupada was the preferential heir. This contention seems to us to be right. It appears that the Munsif was misled by the decision of Greaves and Cuming, JJ., in the case of Sukhamayee Biswas just referred to; because that was a case of stridhan property and the question arose regarding succession to such property and this fact was overlooked and has misled also the editor of Golapchandra Sarkar's book on Hindu law, where he had put the stepbrother as coming not only after a brother's son but also after the sister's son in the line of succession under the Dayabhaga school. The text of the Dayabhaga on this point is as follows:

In the absence of her mother there is the right of a uterine brother only;... in the absence of uterine brothers the stepbrothers of the same caste will inherit.

4. This shows that, according to Jeemutabahana, in the absence of the brothers the stepbrother comes in the next line of succession to the brothers' property. That is the correct view appears from the opinion of Mr. Mayne and of Mr. Rajkumar Sarbadhikari as given in his well-known treatise on Hindu Law of Inheritance, p. 363. 2nd revised edition (1922). In Sheo Sundary v. Pirthee Singh (1877) 4 IA 147 (P.C), the Privy Council held that the half brother comes immediately after the brothers of whole blood just as the son of a whole brother succeeds before the son of a stepbrother. The Munsif and the learned Judge were therefore wrong in coming to the conclusion that the present respondent was the next reversioner to the estate of Durlabhmani's husband, But although the Courts below have fallen into this error, it appears to us that Bishnupada, who is the next presumptive reversioner after the stepbrothers is a person, whose interests are affected by the sale within the meaning of Section 174, Ben. Ten. Act. It has been contended, in view of a decision of this Court in the case of Mohendra Nath v. Baidya Nath AIR 1922 Cal 95 that a reversioner to a Hindu widow's estate, who is entitled to the estate on the death of the widow, did not have 'any interest' in the tenure or holding voidable on the sale' within the meaning of S 170, C1. (3), Ben. Ten. Act, as it stood before its amendment by Bengal Act 4 of 1928. It is sufficient, for our present purposes, to say that the learned Chief Justice, Sir Lancelot Sanderson and Chotzner, J., were dealing in that case with the provisions of the statute, where the words used were to the effect that the person, whose interest was voidable on the sale was entitled to come in and apply. The words, now used after the amendment are 'any person whose interests are affected by the sale' and the words are undoubtedly of much wider import.

5. It has been argued on behalf of the appellant that the reversioner has only got a spes successionis or a chance or possibility of succession which cannot be regarded as an interest in the reversion. This is an entirely erroneous view to submit to the Court. It may not be an interest in praesenti in the property, which the female owner holds for her life. It may be that until the estate vests in him on her death, he hate nothing to assign or to relinquish or even transmit to his heirs: see Amrit Narayan Singh v. Gaya Singh AIR 1917 PC 95. It has been pointed out in the decisions of the Judicial Committee that the estate, which a Hindu widow inherits from her husband, is an estate of inheritance to herself and to the heirs of her husband. It is not right to say that the widow's estate is mere life estate as is underStood in English law: see Moniram Kolita v. Keri Kolitani (1880) 5 Cal 776. It is not known till the female owners' death as to who will be the actual reversioner. It may be that the two stepbrothers might not survive the widow. The interest of the next reversioner is a mere contingent interest; but still it is an interest which has to be recognized. It is sought to be argued that a mere chance of succession is not an interest within the meaning of Section 174, which must be restricted to a present proprietary interest. We are unable to see why that restricted interpretation should be put on the language of the statute which runs as follows: 'any person whose interests are affected by the sale' may come in under Section 174. The word 'interest' is wide enough to include not only a proprietary or possessory interest but also the contingent interest of a reversioner.

6. It is next argued that, in any event, having regard to the circumstances that now exist, Bishnupada is not the immediate reversioner and he has no right to come in. There can be no gainsaying the fact that he has an interest in the preservation of the estate, which would pass out of him, if he at any time happens to be the reversioner. If the property is now sold in execution of a decree for rent against a limited owner a possible reversioner has a right to protect the property, in the reversion of which he may have a possible interest, if the immediate reversioner does not save the property from sale. We are of opinion, that this application may be maintained by a contingent reversionary heir as the presumptive reversionary heirs., i. e., the step-brothers, who would succeed if the widow were to die at this moment, do not care to preserve the estate. This view finds indirect support from two decisions of their Lordships of the Judicial Committee of the Privy Council: Anand Kunwar v. Court of Wards (1880) 6 Cal 764 and Fateh Sing v. Jogannath Bahhsh Singh . In the latter case it was held that a suit for a declaration, that a gift by a Hindu widow is void as against the reversionary heirs of the husband is prima facie competent only to the nearest prospective reversioner and that, if a more distant relation claims to sue he can only maintain the suit by showing that the nearer reversioner has colluded with the widow or for some similar reason. Those reasons were indicated in the earlier judgment as follows: If the nearest reversionary heir refuses without sufficient cause to institute proceedings, or if he has precluded himself by his own act or conduct from suing, or if he concurred in the act alleged to be wrongful. Here the next reversioners have waived their right to preserve the estate by making the deposit and have thereby concurred in the sale by their conduct and I don't see why the remote reversioner should not take steps to protect the estate. We affirm the decision of the Courts below, although we differ from them on the question that Bishnupada is the immediate raversioner; we think that Bishnupada, although not the immediate reversioner, has sufficient interest to make the application under Section 174, Ben. Ten. Act. On this ground we affirm the decisions of the Courts below and this appeal is, accordingly, dismissed. There will be no order as to costs in this appeal. It is not necessary to make any order on the application made in the alternative.

Jack, J.

7. I agree.


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