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Gosta Behari Pramanick and ors. Vs. Atar Sundari Dasi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in62Ind.Cas.94
AppellantGosta Behari Pramanick and ors.
RespondentAtar Sundari Dasi
Cases ReferredKailash Chandra Chuckerbutty v. Kashi Chandra Chuckerbutty
Excerpt:
contribution - liability for contribution of daughters succeeding to the estate of their father, whether joint and several--liability, if charge on daughter's share--interest of one daughter vesting by surrivor-ship in another, effect of. - .....of the original owner jointly and severally liable for what was payable in respect of the share, jointly held by them. it is well settled, however, that daughters who take under such circumstances can divide the property for the greater convenience of enjoyment, but cannot thereby create estates in severalty which would be alienable or descendible in a different manner gajapathi nilamani v. gajapathi radhamani 4 i.a. 212 : 1 m. 290 (p.c.) : 1 ind. jur. 589 : 1 c.l.r. 97 : 3 par. p.c.j. 753 : 3 suth. p.c.j. 365 : 1 ind. dec. (n.s.) 193; kailash chandra chuckerbutty v. kashi chandra chuckerbutty 24 c. 339 : 12 ind. dec. (n.s.) 893. to test the validity of the contention of the appellants, let us assume that the suit for contribution was brought at a time when both the sisters were.....
Judgment:

Asutosh Mookerjee, Acting C.J.

1. This is an appeal by the plaintiffs in a suit for contribution. Plaintiffs and the father of the defendant were joint owners of a putni. The share of the plaintiffs was 7/8ths, while the share held by the father of the defendant was 1/2th. On the death of the father of the defendant, that share was taken by inheritance by the defendant and her sister. Under the terms of the putni lease, certain sums had to be paid into the Collectorate by the kutnidars. The plaintiffs allege that they paid the whole amount due and are consequently entitled to contribution in respect of the sum paid in excess of what was their legitimate share. A difficulty has, however, been created by the death of the sister of the defendant since the payment was made. The plaintiffs contend that they are entitled to recover the whole of the sum paid in excess of their own share from the defendant alone. This contention has been negatived by both the Courts below. In our opinion there can be no doubt as to the correctness of that decision.

2. The defendant and her sister jointly held the 1/8th share of the putni. They enjoyed the income from that share presumably jointly, and they were jointly liable to pay what had to be paid under the putni contract in respect of that share. But the contention of the appellant is that each of the two sisters was jointly and severally liable to pay the whole amount. There is no authority for this proposition, nor can we discover any principle on which the contention can be supported. It is well settled that where daughters of the same class exist, except in Bombay, they all take jointly in the same manner as widows, with a right of survivorship. This was laid down by the Judicial Committee in the cases of Aumirtolall Bose v. Rajoneekant Mitter 2 I.A. 113 : 15 B.L.R. (P.C.) 10 : 23 W.R. 214 : 3 Sar P.C.J. 430; Chotay Lal v. Chunnoo Lall 6 I.A. 15 : 4 C. 744 (P.C.) : 3 C.L.R. 465 : 3 Sar. P.C.J. 880 : 3 Suth. P.C.J. 572 : 3 Ind. Jur. 175 : 2 Ind. Dec. (N.S.) 473 and Venkayyamma Garu v. Venkataramanayyamma Bahadur Garu 29 I.A. 156 : 4 Bom. L.R. 657 : 25 M. 678 : 7 C.W.N. 1 : 12 M.L.J. 299. It is contended, however, that the effect of this doctrine was to make each of the daughters of the original owner jointly and severally liable for what was payable in respect of the share, jointly held by them. It is well settled, however, that daughters who take under such circumstances can divide the property for the greater convenience of enjoyment, but cannot thereby create estates in severalty which would be alienable or descendible in a different manner Gajapathi Nilamani v. Gajapathi Radhamani 4 I.A. 212 : 1 M. 290 (P.C.) : 1 Ind. Jur. 589 : 1 C.L.R. 97 : 3 Par. P.C.J. 753 : 3 Suth. P.C.J. 365 : 1 Ind. Dec. (N.S.) 193; Kailash Chandra Chuckerbutty v. Kashi Chandra Chuckerbutty 24 C. 339 : 12 Ind. Dec. (N.S.) 893. To test the validity of the contention of the appellants, let us assume that the suit for contribution was brought at a time when both the sisters were alive; on what principle could a decree have been claimed by the plaintiffs, jointly against the two sisters, with liberty to execute the decree for the whole sum against either of them? If the decree had been drawn up in that form and had been executed, the result would have been that each of the two sisters would have become forthwith entitled to contribution from the other. In such circumstances, no Court would have drawn up the decree in that form, so as to lead to a second suit for contribution between the sisters; the decree would have specified the liability of each of the two sisters. There can be no doubt that the liability in such circumstances would have been a personal liability. It cannot further be seriously contended that the amount which was paid by the plaintiffs became a charge on the share held by the defendant and her sister; if the amount did not become a charge and was payable by them jointly and not by each of them jointly and severally, the claim put forward by the plaintiffs cannot possibly be sustained. The essence of the matter is that when the interest of one daughter vested by survivorship in the other daughter, she did not take it subject to a charge in favour of the plaintiffs. The result is that the decree of the District Judge is confirmed and this appeal dismissed with costs.

Ernest Fletcher, J.

3. I agree.


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