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Monohar Mukherjee Vs. Suresh Chandra Mukherjee and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in91Ind.Cas.423
AppellantMonohar Mukherjee
RespondentSuresh Chandra Mukherjee and ors.
Excerpt:
will construction of - identification of property--appeal, second--question of fact. - .....large property belonged to babu joy kissen mukherji of uttarpara. this gentleman had three sons hara mohan, raja peary mohan and raj mohun. hara mohan had two sons rash behari and shiv narayan. during babu joy kissen mukherji's lifetime the three sons hara mohan, peary mohan and raj mohan acquired considerable, properties of their own and these properties were managed by babu joy kissen mukherji in conjunction with his own property. about 9 years before his death babu joy kissen mukherji in 1879 executed a will by which he dedicated certain of his properties, to a library. in this will he set out in detail which of the properties, under his management belonged to his sons. it is admitted that any property dealt with by him as his own is his own property. the plaintiff's case is that.....
Judgment:

Cuming, J.

1. In the suit out of which this appeal has arisen the plaintiff sued for recovery of possession on establishment of title of two rooms and a certain varandah. The case of the plaintiff was that these rooms together with a very large property belonged to Babu Joy Kissen Mukherji of Uttarpara. This gentleman had three sons Hara Mohan, Raja Peary Mohan and Raj Mohun. Hara Mohan had two sons Rash Behari and Shiv Narayan. During Babu Joy Kissen Mukherji's lifetime the three sons Hara Mohan, Peary Mohan and Raj Mohan acquired considerable, properties of their own and these properties were managed by Babu Joy Kissen Mukherji in conjunction with his own property. About 9 years before his death Babu Joy Kissen Mukherji in 1879 executed a Will by which he dedicated certain of his properties, to a library. In this will he set out in detail which of the properties, under his management belonged to his sons. It is admitted that any property dealt with by him as his own is his own property. The plaintiff's case is that these two disputed rooms belonged not to Babu Joy Kissen Mukherji but to Hara Mohan and from Hara Mohan came to his sons Rash Behari and Shiv Narayan. Rash Behari apparently got into financial difficulty and two Receivers were appointed to his properties. It is the plaintiff's case that he purchased this property from the Receivers to the estate of Rash Behari Mukherji. The purchase was made by the plaintiff in 1915. The case of the plaintiff is that he never got possession of this properly after his purchase.

2. The defence was that the property belonged not to Hara Mohan but to Babu Joy Kissen and that it was by him dedicated to the use of the Uttarpara Public Library and that the Uttarpara Public Library had all along been in possession of it.

3. The Trial Court held that the property belonged not to Babu Joy Kissen Mukherji but to his son Babu Hara Mohan and on that finding he decreed the plaintiffs suit. On appeal the learned District Judge held that the property in dispute was dedicated by Babu Joy Kissen Mukherji to the Uttarpara Public Library, that it belonged to Babu Joy Kissen Mukherji and not to his son Hara Mohan and that the property in dispute had all along been in the possession of the Uttarpara Public Library being occupied by the library servants.

4. Dr. Mitter on behalf of the appellant has urged first that on a proper construction of the Will it should be held that the property belonged to Hara Mohan and secondly assuming that the property belonged to Babu Joy Kissen it had not been dedicated to the library but it had been devised by the Will of Rash Behari.

5. With regard to the first point. Dr. Mitter argues that where the Will talks of brick built kitchen, stable and the rooms for Durwans on the northern and southern side of the building as being set a part for the residence of the servants in connection with the library and the servants in connection with baithakkhana on the upper floor of the library it means that the rooms on the north of the library were for the residence of the servants of the library, and that the rooms on the south of the library, two of which are these disputed rooms were for the use of the servants of the kaithakkhana. It is sufficient to say that I do not think that the words bear this construction. The words in them selves are perfectly plain and they do not specify that the rooms on the north are for the servants of the library and the room son the south are for the servants of the baithakkhana. What the Will says is that the rooms on the north and the south are for the use of the servants of library and of the baithakkhana. It seems to me that even if the learned Advocate's arguments were correct it would not help his case materially. Both the parties admitted that Babu Joy Kissen only dealt with his own property and did not deal with the property of his sons. Therefore, if he dealt with these disputed rooms it must be because these rooms were his own property. I have no hesitation in holding that the interpretation of these words by the learned District Judge is the correct one, and that the rooms to the north and the south of the library were set apart for the use of the servants of the baithakkhana and, the library. It has not been denied that these rooms in dispute are included in this expression rooms to the north and the south of the library. This clearly indicates that these rooms were the property of Babu Joy Kissen Mukherji, and Avere not the property of Hara Mohan Mukherji. Otherwise as I have pointed out Babu Joy Kissen Mukherji would not have dealt with it.

6. The second ground put forward by the appellant is that even assuming that their belonged to Babu Joy Kissen Mukherji they were not dedicated to the library but they were devised by the Will to Rash Behari. In other words, it was devised for the use of Rash Behari's servant, I have already held that these properties were not allotted exclusively to the use of the baithakkhana but were allotted to the use both of the library and also of the baithakkhana.

7. Lastly the appellant has urged that these properties actually formed part of the properties of Hara Mohan and to support this contention he relies on certain statement in Schedule ka in which the properties of Hara Mohan are detailed and he relies on the following words 'within Boro Pergana south-western side of the said compound of the library of kismat Uttarpara east of the public road mokarrari jamai land together with built rooms and pucca shop house and god owns about 3 cottas.' The learned District Judge has not been able to identify the property herein described as being identical with the property now in dispute. It cannot be said that this is a question of construction of the document. The words are perfectly plain and the only question is to what property they refer. That cannot be construed as a question of construction of a document and, therefore, cannot be argued in second appeal.

8. The result is thai the appeal must fail and is dismissed with costs.

Chakravarti, J.

9. I agree that this appeal should be dismissed with costs.

10. It is necessary for the purpose of the disposal of this second appeal, to say this: one of the questions raised in the suit was as to whether the property now in dispute belonged to Babu Joy Kissen Mukherji or to his son Hara Mohan Mukherji. As to this the learned District Judge differing from the finding of the learned Subordinate Judge has found on the evidence that the property originally did belong to Babu Joy Kissen Mukherji and not to his son Hara Mohan. Assuming therefore, as found that the property did belong to Babu Joy Kissen Mukherji the plaintiff put his case in the alternative that by the Will of Babu Joy Kissen Mukherji the rooms in dispute were given to the sons of Babu Hara Mohan Mukherji. I agree with the construction which the learned District Judge has put upon the part of the Will which refers to this property. In order to construe the Will as suggested by the plaintiff the learned Subordinate Judge read the word 'Dakshin to mean not what if ordinarily means, namely, the southern direction, but something else. That is a construction which Dr. Mitra who appears for the appellant did not submit before us as a proper construction of the word. The learned Doctor contended that in order to arrive at a true construction of the words we ought to read the word 'respectively' in the sentence dealing with this property, that is he contended, that the northern rooms were assigned for the use of the servants of the library and the southern rooms that is the rooms in dispute were assigned to the use of the servants of the owner of the baithakkhana, namely, Babu Rash Behari Mukherji. In my opinion we cannot introduce a word which is not there when the clause in the Will can be well construed as it stands without the addition of any other words. I do not think it is permissible to construe a Will by unnecessarily adding a word. I think the clause clearly means that both the northern and southern rooms were assigned for the joint use of the servants of the library and also of the servants attached to the services of the baithakkhana.

11. Apart from the question which I have discussed there is a finding by the District Judge that the rooms now in dispute had been all along in the possession of the Uttarpara Public Library. That being so, I think this finding alone was sufficient for the dismissal of the plaintiff's suit.

12. In this view I think the appeal is concluded and the plaintiff's suit has been rightly dismissed.


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