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Bhupendra Nath Bhose and anr. Vs. Goonendra Nath Bhose - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1929Cal42
AppellantBhupendra Nath Bhose and anr.
RespondentGoonendra Nath Bhose
Cases ReferredMahomed Riasat Ali v. Hasin Banu
- .....i entirely agree that, if the correct finding is that these people were claiming to hold the property as property which was woopendra's and not the plaintiff's and which, therefore, had come down to them, they were holding it under a title which was hostile to the plaintiff and the plaintiff would have six years from 1910 in which he would be obliged to bring his suit. it is necessary, therefore, for us to examine the evidence for ourselves and see whether the real facts found do warrant any such conclusion. it is not the effect of the plaintiff's evidence or of any evidence in this case that these defendants ever claimed that these ornaments were ornaments belonging to their father's estate or in which they had a joint interest with the plaintiff as part of their father's estate......

Rankin, C. J.

1. In this case the plaintiff, Goonendra brought a suit against two defendants originally his stepbrothers Bhupendra and Jnanendra. Janendra has since died pending the suit; but I will omit for the sake of simplicity the complications caused by that event. The plaintiff's case is that his father Wooppendra Nath Bhose was married twice, that by his first wife he had two sons, namely, the defendants, and that, after the death of his first wife, he married one Sushila Sundari Dassi and by her he had two children the elder of the two being a daughter and the younger being the plaintiff. It seems that, in the year 1905 Woopendra practically retired from business and his business affairs were managed by Bhupendra and Jnanendra. In the same year, Sushila Sundari died. Woopendra survived her by some four years till 1909 and, in 1910, the plaintiff attained majority. These are the broadest facts of the family history with which we are concerned.

2. The plaintiff's case is that when his mother Sushila Sundari died in 1905 she died possessed of a good many valuable personal ornaments of which certain descriptions have been given in the course of the evidence. These ornaments, according to the plaintiff, were acquired by his mother in such a way as to be her ajautuka stridhan and the plaintiff' undertakes to show that they were ajautuka stridhan because otherwise, if they were jautuka stridhan, they would belong not to the plaintiff but to his sister Srimati Saroj Basini Dassi. That is the first point in the case. The defendants, in addition to putting the plaintiff to proof of the existence of the ornaments and the jewellery and of the fact that they were acquired so as to become Susila Sundari's ajautuka stridhan, deny altogether that any such property came at any time to their hands. The learned Judge had said that they put forward four different inconsistent cases and he has disbelieved the defendants and has believed the plaintiff.

3. It becomes necessary in this case to state as matters of simple fact what the plaintiff's evidence establishes because a great difficulty has arisen in this case from the fact that legal interpretations have been somewhat rashly put upon facts without sufficiently considering the distinction between the facts themselves and the legal results of certain facts. I am quite satisfied that the evidence adduced by the plaintiff entitled the learned Judge to hold, and that he meant to hold the following facts: First of all, the learned Judge had believed the evidence (which is the only evidence upon the point) given by Kusum Kumari Dassi as regards the way in which the plaintiff's mother came to be possessed of the articles in question and as to the fact that these articles came to the hands of the defendants. The lady explains that Sushila Sundari obtained the articles in question in two ways: first, she says they were presents given by the witness herself Kusum Kumari before Susila's marriage to Woopendra and, secondly, she says they were presents which Susila got from Woopendra after the marriage. Now, as to that when the Hindu Law is examined, it turns out that the difference between ajautuka and jautuka stridhan is a matter which requires some little consideration. Jautuka stridhan is not entirely confined, it would appear, to presents given actually before the nuptial fire. But the limits within which such presents become jautuka stridhan are somewhat narrow. Kusum Kumari, the grandmother, having given her evidence in the manner I have described for the plaintiff is in no way cross-examined with a view to show that the particular facts to which she is speaking bring the case on a careful examination to a case of jautuka stridhan. Her evidence is left exactly as she gives it a broad statement -- gift from herself before the marriage, gift from her husband after the marriage. In my opinion, it either was not in the contemplation of the defendants at the time of the hearing to contest seriously the nature of this stridhan or else they felt themselves wholly unable to cope with this lady and cross-examine her so as to throw doubt upon the evidence which she gave. It has to be remembered that the defendant's case is, that no such ornaments ever came to their hands. So far as I know, they do not admit anywhere that to their own knowledge any such property was in existence at any time. Indeed, their case suffers seriously from the attempt which the defendants made to show that to the best of their knowledge this lady who married a man of some considerable wealth and position had no ornaments at all. In my opinion, therefore, the learned Judge's finding that this was ajautuka stridhan should not be disturbed. The only reason why his finding requires to be considered at all is that, in giving his reasons for supposing that the ornaments possessed by this lady were of substantial value, he does say in his judgment that Woopendra would be unlikely to give his bride cheap or insignificant presents. It does not seem to me that the learned Judge's attention there was being directed to the exact legal distinction in Hindu Law which divides jautuka stridhan and ajautuka stridhan and the fact that he uses the word 'bride' does not lead me to suppose that he has come to the conclusion after considering the matter that these presents were given at the exact time of the marriage. In any event, looking to the uncontradicted and simple evidence given in the course of the case, it appears to me that the plaintiff has made out his title by making out that this is property which would come to him and would not 'go to his sister. I need not say that, in no event,, would it come to the defendants.

4. Now, it is necessary to go again over certain facts in this case in order to deal with the only other contention which has been raised before the Court by Mr. Langford James on behalf off the defendants-appellants namely the contention that the plaintiff's case is governed by Article 120, Schedule 1, Lim. Act of 1908 and that, under Article 120, the plaintiff's case is time-barred because; as I understand the argument, his suit might and could have been brought in 1910 when the plaintiff came of age, and six years from that date would be 1916, whereas the plaint was not filed till September 1920. Here, again, I would try to keep to the facts as distinct from a more or less unsuccessful attempt to interpret the facts.

5. The facts are that before 1905 when Susila Sundari died the ornaments in question, according to the plaintiff's evidence, were kept in her own room and that after she died they were kept in an iron-safe in her husband's room. What else was kept in the iron-safe we do not know. What other purpose the iron-safe was used for we do not know. We are told that Bhupendra one of the defendants kept the key; but it is quite true, as Mr. James points out that however much the management of the family affairs might be left by the father to the plaintiff's stepbrothers, the mere existence of the ornaments in the safe would not have involved any management at all. The facts are that they went on in the safe in the father's room and defendant 1 has the key. When Woopendra died in 1909, the facts are that the plaintiff had not yet come of age, that his stepbrothers were considerably older than he was, and that naturally enough they not only took probate of the father's will but carried on the family concerns as they would have done in ninety nine cases out of hundred in Hindu families of this particular type. The ornaments were in the safe and they went on in the safe. It appears that when the family had occasion to use them they were used. They were used later on at the time of the plaintiff's marriage. Some other relatives seem to have used them on occasions. There is no reason why they should not be used when suitable occasions arose. There is no suggestion in the plaintiff's evidence or in . the defendant's evidence that any claim was made by the elder brothers that these ornaments belonged to them. The nature of the ornaments makes it very improbable that there was much doubt as to their not belonging to the stepbrothers. What happened is what one would expect so long as the family was living jointly and without trouble. Of course, in the end, trouble did come. It seems that, in 1919 the finances of the defendants being in an unsatisfactory state, there was a question of selling two of the ornaments. It seems that the plaintiff's consent was asked, the two ornaments were valued for the purpose of sale and the plaintiff in the end refused his assent and they were not sold. There was a partition in 1920 and it is in September 1920 that the plaintiff brings his suit. Those being the facts, the matter begins, as most plaints, in this Court do, by getting them thoroughly muddled with the pleadings. There were two attempts to fasten these facts with various, legal categories in order to put the plaintiff's case straight for the purposes of the Limitation Act and the real difficulty in applying the law to the facts consists entirely in the circumstances that instead of saying that when Woopendra died the defendants took possession of whatever was in the house and that the family went amicably on as before, the plaint says this:

The management of the estate and affairs of the said Woopendra Nath Bhose was under the control of the defendants and with the knowledge and concurrence of their father they took possession of the said ornaments and jewellery for and on behalf of and as trustees for the plaintiff and continued to hold the same as such till his death.

6. That is the travesty of what happened before Woopendra's death. The travesty of what happened after his death is this. The plaint goes on to say:

Upon the death of the said Woopendra Nath Bhose, the defendants as executors and trustees appointed under his will took possession of the estate left by him as such executors and trustees including the plaintiff's share therein and the said jewellery and ornaments continued to be in their possession, care and control as such executors and trustees and are still in their possession and control.

7. The learned Judge has, it is true, found not merely the fact that these defendants being the elder brokers took possession of the house with the ron-safe and whatever were the contents of the iron-safe; but he also says that the, took possession as executors and trustees and Mr. Langford James very properly points out that if this has to be regarded accurately then the plaintiff would have a right to bring his suit the moment he attained majority. If these brothers of his were holding the property as executors of Woopendra, then, of course, they were setting up a hostile title to the plaintiff because according to the plaintiff's case Woopendra was never the owner of these goods at all after Susila. As a matter of verbal criticizm, I entirely agree that, if the correct finding is that these people were claiming to hold the property as property which was Woopendra's and not the plaintiff's and which, therefore, had come down to them, they were holding it under a title which was hostile to the plaintiff and the plaintiff would have six years from 1910 in which he would be obliged to bring his suit. It is necessary, therefore, for us to examine the evidence for ourselves and see whether the real facts found do warrant any such conclusion. It is not the effect of the plaintiff's evidence or of any evidence in this case that these defendants ever claimed that these ornaments were ornaments belonging to their father's estate or in which they had a joint interest with the plaintiff as part of their father's estate. As I have already observed, the nature of the ornaments makes it extremely unlikely that these stepbrothers would set up any right to the ornaments of a lady who was not their mother at all. There is nothing in the conduct of Woopendra to suggest that he suffered under any impression that the ornaments devolved on him. What has happened is entirely natural and consistent with the plaintiff's case. The ornaments remained after the father's death in the safe when the elder brothers had to carry on the family concerns and the infant lived with them no question of dispute arising between them.

8. Plaintiff's ease is that they were always recognized as belonging to him because everybody knew that they were the ornaments of his mother. In these circumstances, the last thing that is true is to say that they were held by the defendants as executors of Woopendra's estate. So far as I am concerned, I entirely dissent from any such finding because the evidence satisfies me to the contrary. In my opinion, the position is, as the plainliff's evidence shows, that these goods being there in the safe, the family went on, the elder brothers having no doubt a general direction and control of the family affairs being responsible as natural guardian of the plaintiff and looking after the plaintiff's property. There is no reason to think that any claim or controversy arose until long after the plaintiff attained majority. In the meantime, he was living in amity as a member of a joint Hindu household at the old house. The question is whether, in these circumstances, Article 49 or Article 120, Lim. Act, applies and whether, if Article 120 applies, the suit is time-barred. In my opinion, whichever article applies the suit is no time-barred but on the facts which I have endeavoured to state, I think the article applicable is Article 49. I will deal, first with the question of the article applicable Article 49 has to be read with Article 48 and having disposed in Article 48 of all cases of claim for specific moveable property lost, or acquired by theft, or dishonest misappropriation or conversion or for compensation for wrongfully taking or detaining the same, Article 49 deals with cases of claim for other specific moveable property, or for compensation for wrongfully taking or injuring or wrongfully detaining the same; and it says that the time is to be three years from the date when the property is wrongfully taken or injured, or when the detainer's possession becomes unlawful. Article 49 is the ordinary article to apply in a case where the original possession of the defendant is lawful but it becomes unlawful by reason of certain facts. The common case is the case where the demand is made by the plaintiff, the plaintiff having a right to determine the possession of the defendants. Now, it is said that that article is inapplicable because of the decision of the Privy Council in the case of Mahomed Riasat Ali v. Hasin Banu [1894] 21 Cal. 157 and it is a little important to see what the Privy Council actually held in that case. That was a case where a Mahomedan died leaving a widow and a brother. In the wajib-ul-arz of the place where he had his immovable property there was a statement of the local custom governing such people and the local custom evidenced by that record and by certain other records was that the widow would succeed to the whole of her husband's estate for a life-interest. The man died and his brother went into possession of his effects on the basis that there was no such custom and that the property devolved on him and the suit was brought to establish the widow's right under that custom, first of all, to the immovable property and then to the cash and other things that the man died possessed of. A controversy arose as regards the moveables whether the claim against the brothers was a claim under Article 49 or under Article 120; and it is with reference to a case like that that their Lordships said:

This latter article', that is Article 49 'does not appear to be applicable to a suit to establish a right to inherit the preperty of a deceased person.

9. The case there was that the widow was claiming to use Article 49 by saying 'if I establish my right under the custom then you, the defendant, are a person who has wrongfully taken my property.'

10. Their Lordships of the Privy Council say that that is not the way to look at a suit to establish a right to succeed to the property of a deceased. In my judgment, that is not this case at all. The plaintiff's case is not that the defendants wrongfully took his property. His case is that the defendants were in rightful possession of the property, in rightful possession so long as he was a minor, in rightful possession so long as he was living with them and let them look after it, but in wrongful possession of it since 1919 or 1920 when he claimed that they should make over the property to him; and I am in no way satisfied that there is any valid reason for holding that the plaintiff's claim in this case should be excluded from Article 49.

11. The next question is, however, whether the same principle would not apply under the terms of Article 120. I think they would. If one asks oneself why the plaintiff should bring a suit in 1911 soon after he attained majority against his stepbrothers and what his cause of action in such a suit would be, I think that question, too must be answered against the present appellants. It is quite true that the plaintiff had a right to determine the lawful possession of his elder brothers who were living jointly with him. He had the right to do that. But it is no part of the policy of the Limitation Act to make people determine the lawful possession of others who are looking after their property or who have their property on deposit. The policy of the Limitation Act is that when once that arrangement is stopped the suit should be brought within a limited time. So far as I know, without making a demand upon the brothers for this property, on the facts which the plaintiff's case discloses, the plaintiff would not have had a cause of action against his stepbrothers but had first of all to determine their possession, to do something which would render their possession unlawful and then to bring his suit. In my judgment, under Article 120 just as under Article 49, the plaintiff in this case has brought his suit within time. It cannot be too strenuously emphasized that everything depends upon the exact facts in a case like this. If it had been the defendant's case at any stage that they had the property, that they knew it came from a different origin, that they claimed that it had. belonged to their father or that two-thirds of it belonged to them, then no doubt none of the reasons which I have endeavoured to apply to the facts of this case would have been at all applicable.

12. Upon the facts of this case, it seems to me that the judgment of the learned Judge should be upheld and this appeal should be dismissed with costs.

13. A cross-objection is argued in this case on behalf of the plaintiff to the effect, first that he learned Judge on the evidence of Hrishikesh ought to have found that the value of the jewellery proved to have been received by the plaintiff's mother from her husband was more than Rs. 10,000 and also that the learned Judge has forgotten to take any account of the ornaments said to be 107 tolas in weight which the lady is said to have got from Kusum Kumari. It appears to my mind as regards the first point that the learned Judge was not satisfied having regard to the nature of the articles in question, that he could safely go by the valuation of the witness Hrishikesh Roy, and, being apparently dissatisfied with that evidence in some respect, he has really reminded himself of the duty of the Court which is not to give damages for a single penny more than what is quite certainly proved. The learned Judge has, in so doing certainly discounted the figure given by the jeweller very heavily. He was dealing with articles with reference to which it is very difficult to form a precise opinion and I do not think it would be right on the part of this Court to interfere with his figure seeing that he was entitled to put a conservative figure upon the matter.

14. As regards the 107 tolas in weight of jewellery which is described by Kusum Kumari, there again the plaintiff is in the unfortunate position that no evidence whatever has been given, of the value of these articles. It may be that, if some evidence had been given of the value, it would have been our duty to interfere. But it is very difficult to say that, on this evidence, the learned Judge was obliged to allow the plaintiff any particular figure. The ornaments may have been of standard gold or something containing a great deal of alloy in them or they may have been merely worth the actual weight of the gold they contain or may have been worth more. It is difficult indeed for the Court left as it is without the opinion of a single witness as to the minimum value of such articles to say that the learned Judge was obliged to put any additional figure upon them and that he was wrong to ignore these articles. I think it may be due to the 'fact that there was no material upon which he could assess the amount. I do not think that in this case it is right and proper that there should be an enquiry as to the value of these ornaments. In these circumstances, the only thing we can do although I quite agree that the plaintiff has probably got less than the value of the articles is to dismiss this cross-objection with costs.

Buckland, J.

15. I agree.

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