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Mohananda Dutta Chowdhury Vs. Baikantha Nath Dutta and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in45Ind.Cas.872
AppellantMohananda Dutta Chowdhury
RespondentBaikantha Nath Dutta and ors.
Excerpt:
hindu law - widow, surrender by, of part of estate, validity of. - .....ordinary recital that she was in want, stated as follows: 'if i make you absolute owner of an one-anna share out of my share pf the properties mentioned below by transfering the same to you by a deed of release and if your father sells that share by a kobala accompanied by an ekrar to compensate loss in your behalf, some persons are ready to purchase that share.' that does not purport to be a sale by the widow for the purpose of meeting her necessities. it simply states that it would be a convenient way of selling the property if it is made over to the grandson jnanendra. then, the deed states: 'i on relinquishing whatever right i have of enjoyment and possession of an one-anna share out of my share of the undermentioned properties worth rs. 300, etc., make you absolute onwer in respect.....
Judgment:

Fletcher, J.

1. This is an appeal by the defendant No. 2 against the judgment of the learned District Judge, Sylhet, affirming the decision of the Mnnsif of Habignnge. The suit was brought to recover possession of an one-anna share as against the defendants Nos. 1 and 2 on a declaration of title by purchase. The admitted facts are these. The original owner of the property was one Gopinath. He had three sons; the defendant No. 1, the father of the defendant No. 2 and one Chai Mranath. Chandranath died leaving and widow, Tripura Sundari, a daughter who married one Protab and the son of that daughter named Jnanendra. The title in this case is made in this way. On the 19th July 1901 Tripura Sundari executed a document (Exhibit 4) in favour of Jnanendra who was then a minor. The document, after the ordinary recital that she was in want, stated as follows: 'if I make you absolute owner of an one-anna share out of my share pf the properties mentioned below by transfering the same to you by a deed of release and if your father sells that share by a kobala accompanied by an ekrar to compensate loss in your behalf, some persons are ready to purchase that share.' That does not purport to be a sale by the widow for the purpose of meeting her necessities. It simply states that it would be a convenient way of selling the property if it is made over to the grandson Jnanendra. Then, the deed states: 'I on relinquishing whatever right I have of enjoyment and possession of an one-anna share out of my share of the undermentioned properties worth Rs. 300, etc., make you absolute onwer in respect of the said share. From this day, whatever right of enjoyment and possession I have in the lands proportionate to that share being extinguished, jou become absolute owner.' It is said that that document is a sale by the widow or may be treated as a sale by the widow for the purpose of meeting her present necessities. That cannot he anything of the sort. The document purports to be a release by the widow of an ereanna share of her life-interest and the purpose for which the release was made was thus stated in the deed, namely, that the release having been made to Jnanendra, Jnanendra's father Protap by executing aa ekrarnama fcnight be able to get some person to purchase the property. The cases of the Privy Council and of this Court are quite clear that a release by a widow to the reversioner cannot be made of less than the whole of her interest. The reason is to prevent these continual releases to the reversioner for the time being and large portions of the property from being withdrawn from the person who ultimately turn's out to be, in fact, the reversioner on the widow's death and also that if a widow has got tfo give up the whole of her interest she would be very careful before parting with the whole of the property at the same time. JJ. is said in this case that when this man Trotap sold the property seven months affeer, that transaction along with Exhibit 4 formed one and the same transaction. I do not agree. The plaintiffs did not allege that it was so and obviously it cannot be so. Moreover, the fact found by the learned Judge is that the consideration money obtained by Protap at the sale is not traced beyond the hands of Protab. It is not shown that it went to Jnanendra or to somebody else. I think a case like this is clearly opposed to the decision of the Full Bench of this Court that a surrender by a Hindu widow made otherwise than for consideration to meet legal necessities must be of the whole of her interest. This case was an attempt to surrender a small portion and Exhibit 4 did not, in my opinion, operate to pass that one-anna share to Jnanendra which was subsequently purported to be sold to the plaintiffs by Protap. That being so, we ought to set aside the decision of the learned District Judge and allow the present appeal and dismiss the plaintiffs' suit with costs both in this Court and in the lower Court.

2. Shamsul Huda, J.--I agree.


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