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Mahomed Sadut Ali Mallik Vs. Hara Sundari Debya - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in15Ind.Cas.351
AppellantMahomed Sadut Ali Mallik
RespondentHara Sundari Debya
Cases ReferredBaijun Doobey v. Brij Bhookan Lall
Excerpt:
hindu law - female heir--suit for rent accrued due after death of full owner--decree against female heir--sale of property--purchaser, what passes to--suit for contribution against female heir--decree and sale--title of purchaser, absolute or not. - .....moreover, there are further difficulties in the appellant's way; for neither the decree in the rent suit nor the decree in the action for contribution is in, and we are, therefore, in the dark, both as to whether the whole tenure could have been sold in satisfaction of the former, and as to the capacity in which the latter was obtained against jagodeshwari. all that we have to guide us in the matter is the respondent's sale certificate, and that refers to ' the property of the judgment-debtor, jagodeshwari debya, widow of brojo mohan mahalnebo,' a description which indicates the lady's interest as widow rather than the estate itself. and we cannot help observing in conclusion that the point now taken is really a new one, the nearest approach to it in the court below being apparently.....
Judgment:

1. The respondent in this second appeal sued as being the reversionary heir of her father after the death in 1898 of her widowed mother, Jagodeshwari Debya, for a declaration of her title to, and the recovery of possession of, a share in shikmi taluq. It appears that in 1873 a decree for rent of the taluq was obtained against Jagodeshwari and her co-sharers. The latter satisfied the claim, brought a suit for contribution against Jagodeshwari and were given a decree, in execution of which a share of the taluq was sold and purchased on the 20th May 1876 by the appellant, a Mahomedan. Both the Courts below have decreed the plaintiff-respondent's suit, and this appeal is preferred by the defendant.

2. The first of the only two points raised on the appellant's behalf is as to the refusal of the Court of first instance to grant the appellant an adjournment and direct the issue of a commission for the examination of two ladies to prove that the respondent's father had adopted a son and that she had consequently been excluded from the Inheritance.

3. As to this the facts are these: The issues were first framed on the 17th August 1907, but on the 10th June 1908, an additional issue expressly raising the question of the alleged adoption was added. Witnesses were from time to time summoned, and the case was heard from the 20th to 26th November. Among the appellant's witnesses were two members of the family, called to testify to the adoption, but one of these (Arodhan) would not do more than swear that there had been some talk of an adoption, while the other (Shyam Sundar) failed to appear and no steps were taken to enforce his attendance. But on the 26th November, one Kally Kumar Chuckrabutty, a Pleader connected with the family, who had already been examined by the respondent as a witness in the case, was once more and at the last moment put into the witness-box by the appellant to declare that he had heard his mother and the respondent's sister Rashmoni say that a boy had been adopted; and no sooner was this hearsay statement extracted from him than the appellant applied for an adjournment and the issue of a commission for the examination of the two ladies. In these circumstances, the refusal to accede to the prayer, might,-we think, be supported on the merits if this were a regular appeal; it is certainly not arbitrary and incapable of justification; and we are of opinion that it is not open to us, on second appeal, to interfere with the discretion exercised in the matter by the lower Courts.

4. The second point relates to the finding that, in the suit for contribution brought against her, Jagodeshwari did not represent her late husband's estate, and consequently the reversioners were not bound by the sale in execution of the decree in that suit. The argument, with which we are pressed, that as the original liability was one for the arrears of rent, to liquidate which the entire tenure might have been sold, the decree for contribution arising directly therefrom should be held to have had the same effect, the sale under it passing not the widow's interest merely, but the taluq. The point is not free from difficulty; but on the whole we are disposed to think that the view taken by the Courts below is correct and should be affirmed. The authorities on the subject were discussed by this Court in Braja Lal Sen T. Jiban Krishna Boy 26 C. 285 and on appeal to the Privy Council their Lordships of the Judicial Committee--see Jiban Krishna Roy v. Brojo Lall Sen 30 C. 550 : 5 Bom.L.R. 428 : 30 I.A. 81--expressed concurrence with the view that, when a suit for rent against a Hindu daughter was brought in respect of arrears which had accrued due after her father's death and while she was in enjoyment of the property, the liability for rent should be regarded as her personal liability, and ought not to be held to attach to the reversion unless and until the landlord proceeded to bring the tenure itself to sale under the special provisions of the Rent law. It comes to this, indeed, that it does not follow that, because a liability could be made a charge on the estate, it ipso facto ceases to be a personal liability; and thus in Baijun Doobey v. Brij Bhookan Lall 1 C. 133 : 24 W.R. 306 : 2 I.A. 275 it was held by the Privy Council, that the liability of a Hindu widow to pay maintenance to her mother-in-law, though charged on the estate, was personal to her, so that a sale in execution of a decree therefor against her passed only her interest. Here, moreover, there are further difficulties in the appellant's way; for neither the decree in the rent suit nor the decree in the action for contribution is in, and we are, therefore, in the dark, both as to whether the whole tenure could have been sold in satisfaction of the former, and as to the capacity in which the latter was obtained against Jagodeshwari. All that we have to guide us in the matter is the respondent's sale certificate, and that refers to ' the property of the judgment-debtor, Jagodeshwari Debya, widow of Brojo Mohan Mahalnebo,' a description which indicates the lady's interest as widow rather than the estate itself. And we cannot help observing in conclusion that the point now taken is really a new one, the nearest approach to it in the Court below being apparently the argument that the circumstances of Jago-deshwari Debya were such that the sale in execution of the decree for contribution against her must be regarded as caused by legal necesssity and, therefore, binding on the reversioners.

5. For all these reasons, we hold that the contentions raised fail, and the appeal must be dismissed with casts.


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