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Kumari Dasya Widow of Ram Kumar De Vs. Rani Hemanta Kumar Debi Widow of Jatindra NaraIn Rai Bahadir and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in60Ind.Cas.402
AppellantKumari Dasya Widow of Ram Kumar De
RespondentRani Hemanta Kumar Debi Widow of Jatindra NaraIn Rai Bahadir and ors.
Cases ReferredAbhoy Sankar Mommdar v. Bajani Manial
Excerpt:
bengal tenancy act (viii of 1885), section 50(2) - rent, fixity of, presumption as to--tenant, status of. - .....of that witness is to the facts that ram kumar surrendered and took re-settlement in the name of his wife, that is to say, his casa is that the so called surrender was merely a benami transaction. it follows from this that the transaction was either' by way of gift or by way of a fictitious surrender, in either case, with a view to the admission of the wife into the original tenancy as held by him. that is also apparent from the finding that the landlord has failed to prove variation in the rent at any period prior to twenty years before suit. in 1275 the rent was rs. 12 6.0 and when the re-settlement was made in the name of the wife it was, as in fact the judge finds, rs. 12-60. in this view of the facts, on the authority of the case reported in abhoy sankar mommdar v. bajani.....
Judgment:

1. This appeal arises oat of a suit brought by the plaintiff in the Court of an Assistant Settlement Officer under the provisions of Section 106 of the Bengal Tenancy Act. In the Record of rights prepared under Chapter X of the Act the plaintiff was entered as a settled raiyat of the village. Her contention is that this entry is incorrect and that her status is, in facts, that of a raiyat holding at a fixed rent. The decision of the Court of first instance was in her favour. In the Court of first appeal, t. e' fie Court of the Spsaial Judga of Mymensingh the learned Judge held that the plaintiff had suooeeded in proving that the rent payable in respect of the holding had remained at Rs. 12-6-0 for more than t seventy years and that the defendant had failed to prove any variation in the rent at any prior period. He next proceeded to hold that the predecessor of the present plaintiff, her husband, a person of the name of Rim Kumar, had transferred the holding to his wife somewhere about the year 1275, e., some 49 years before suit. According to the plaintiff, the transfer was by way of gift. According to toe defendant, the transfer was by way of surrender on the part of the husband and a subsequent settlement in the name or in favour of the wife. The first Court found that the story of surrender remained unproved. The learned Special Judge came to no finding as to whether the transfer was by way of gift or by way of surrender and whether the transaction of surrender and settlement was a teal surrender or a benami one. On this state of fact t, anything under the provisions of Section 103, Code of Civil Procedure, we have looked into the evidence and we find that the only evidence adduced with regard to this question of surrender on behalf of the defendant is that of his witness No. 2. The deposition of that witness is to the facts that Ram Kumar surrendered and took re-settlement in the name of his wife, that is to say, his casa is that the so called surrender was merely a benami transaction. It follows from this that the transaction was either' by way of gift or by way of a fictitious surrender, in either case, with a view to the admission of the wife into the original tenancy as held by him. That is also apparent from the finding that the landlord has failed to prove variation in the rent at any period prior to twenty years before suit. In 1275 the rent was Rs. 12 6.0 and when the re-settlement was made in the name of the wife it was, as in fact the Judge finds, Rs. 12-60. In this view of the facts, on the authority of the case reported in Abhoy Sankar Mommdar v. Bajani Manial 47 Ind. Cas 359 : 29 C.L.J. 371 : 22 C.W.N. 904, we must hold that the recognition given by the landlord to the transfer to or re-settlement in the name of the wife had the effect of admitting the wife into the original tenancy held by Ram Kumar with all its incidents and that she, therefore, became the successor-in-interest of her husband. From this it follows that the presumption that arises under the provisions of Section 50(2) of the Bengal Tenancy Act has not been rebutted and that this appeal must, therefore, succeed, We accordingly set aside the decree made by the Special Judge and restore the decree made by the Settlement Officer with costs in all Court


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