Skip to content


Braja Lal Sen Vs. Jiban Krishna Roy - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1899)ILR26Cal285
AppellantBraja Lal Sen
RespondentJiban Krishna Roy
Cases ReferredMohima Chunder Roy Chowdhry v. Ram Kishore Acharjee Chowdhry
Excerpt:
hindu law - bengal school--father's brother's daughter's son, whether preferential heir to mother's brother's son--limitation act (ix of 1871)--suit by reversioner for possession of immoveable property--revival of right extinguished--limitation act (xv of 1877), section 2--effect of sale for arrears of rent accrued due after the death of the full owner, from the female heir--res judicata. - francis w. maclean, k.c.i.e., c.j. and banerjee, jj.1. this appeal arises out of a suit brought by the plaintiff appellant for possession and mesne profits of certain immovable property known as chak bele durgahagun, on the allegation that the chak appertained to the estate of one ramsagur mitter; that on the death of ramsagur mitter in 1240, corresponding to 1833, his two daughters anandmoyi and ishaneswari, who were his heiresses, held and owned the said chak in equal shares; that on the death of anandmoyi in 1241 (or 1834), her share passed by survivorship to her sister ishaneswari, who, however, out of affection, gave anandmoyi's son uma charan an eight anna share of the chak for his maintenance, and uma charan accordingly held possession of the same; that on the death of tshaneswari.....
Judgment:

Francis W. Maclean, K.C.I.E., C.J. and Banerjee, JJ.

1. This appeal arises out of a suit brought by the plaintiff appellant for possession and mesne profits of certain immovable property known as chak Bele Durgahagun, on the allegation that the chak appertained to the estate of one Ramsagur Mitter; that on the death of Ramsagur Mitter in 1240, corresponding to 1833, his two daughters Anandmoyi and Ishaneswari, who were his heiresses, held and owned the said chak in equal shares; that on the death of Anandmoyi in 1241 (or 1834), her share passed by survivorship to her sister Ishaneswari, who, however, out of affection, gave Anandmoyi's son Uma Charan an eight anna share of the chak for his maintenance, and Uma Charan accordingly held possession of the same; that on the death of Tshaneswari in Falgoon 1300 (or March 1894), the plaintiff as Ramsagur Mitter's father's brother's daughter's son became entitled to the said chak by inheritance, and that he has been wrongfully kept out of possession of it by the defendant; and that even if the defendant had acquired any right to the chak it became extinguished on the death of Ishaneswari.

2. The defendant sets up various defences. He says that the plaintiff is not the heir of Ramsagur, pleads the statute of limitation, sets up the plea of res judicata, and alleges that the property in dispute never belonged to Ramsagur Mitter, but was acquired by Uma Charan's father Harish and Ishaneswari in equal shares; and that even if it did belong to Ramsagur, the plaintiff's right, if any, as reversioner, has become extinguished. He then alleges, and there is not, we think, any dispute as to the truth of these allegations, whatever the result in law flowing from them may be, that Uma Charan, Ishaneswari, and her son Prosonno Coomar Bose jointly mortgaged the chak in dispute to Kristo Mohun Mitter in May 1861, to pay off certain arrears of rent due in respect thereof; that Uma Charan's heirs subsequently mortgaged their eight anna share, that is, a moiety of the chak, to Brojo Nath Kundoo to satisfy the mortgage debt due to Kristo Mohun Mitter; that subsequently the eight anna share of Uma Charan's heirs in the chak, was sold in execution of the decree obtained on Brojo Nath Kundoo's mortgage, and that the remaining eight anna share of the chak, which belonged to Ishaneswari, that is, the other moiety, was sold in execution of certain decrees for arrears of rent, and that the entire sixteen annas interest in the chak, that is, the entirety of the property, was purchased by one Mathura Nath Chuckravarti, whose interest subsequently passed by a sale in execution of a decree to Thakomoni Dasi. It is further alleged by the defendant, and we think proved, that the execution sale of Ishaneswari's eight anna share was set aside in a regular suit, and the said share was again sold on the 5th of January 1885 in execution of a fresh decree for arrears of rent, and purchased by one Chandra Coomar Bandopadhya, from whom.it passed through an intervening transfer to Thakomoni Dasi; that Thakomoni Dasi subsequently mortgaged the disputed chak and other properties to the defendant; and that; the defendant purchased the entirety of the property at a sale held in execution of the decree obtained by him on his mortgage. He thus claims to be entitled to the entire sixteen anna share, in other words the entirety of the property in dispute, and, in assertion of that claim, opposes the plaintiff's contention.

3. The Court below held that the plaintiff was the reversionary heir of Ramsagur Mitter; that the property in dispute appertained to the estate of Ramsagur, and that the plaintiff's claim was not barred by limitation, but he dismissed the suit on the ground that the sale of Ishaneswari's eight anna share, in execution of the decrees for rent, passed not merely her limited interest as her father's daughter, but also the reversionary interest in the said share; that the present suit, so far as it relates to that share, was successfully met by the defendant's plea of res judicata by reason of the dismissal of Ishaneswari's suit for reversal of the execution sale; and that the reversionary right claimed by the plaintiff in respect of the eight anna share held by Uma Charan had been extinguished, and an absolute title created in favour of Uma Charan by virtue of a family arrangement made by Ishaneswari, and acquiesced in by Prosanno Kumar Bose, the then next reversioner.

4. Against this decision the plaintiff appeals, urging that the Court below was wrong in holding that the sale in execution of the rent decrees could pass anything beyond Ishaneswari's limited interest; that it was wrong in holding that the suit as regards Ishaneswari's eight anna share was barred as res judicata; and that it was also wrong in holding that, in regard to the remaining eight anna share, an absolute title had been created in favour of Uma Charan. The respondent not only supports the judgment of the lower Court on the points decided in his favour, but also seeks to support the decree of dismissal of the suit on three additional grounds, namely, that the plaintiff has failed to establish his heirship to the estate of Ramsagur Mitter; that he has also failed to show that the property in dispute appertained to that estate; and that the suit, as regards the eight anna share of the chak held by Uma Charan, was barred by limitation. In this position of matters the points which arise for our determination are:

First.--Whether the plaintiff has made out that he is the reversionary heir to the estate of Ramsagur Mitter.

Second.-Whether the chak in dispute appertains to that estate.

Third.--Whether the plaintiff's claim to the eight anna share of the chak held by Uma Charan is barred by limitation.

Fourth.--Whether the reversionary right claimed by the plaintiff in the eight anna share held by Uma Charan became extinguished under the family arrangement set up by the defendant.

Fifth.--Whether the defendant's plea of res judicata in respect of the other eight anna share is a bar to the suit.

Sixth.--Whether the reversionary interest in the eight anna share passed under or was bound by the sale in execution of the rent decrees against Ishaneswari or her limited interest only.

5. Dealing with these various points in the order indicated above, on the first point the case of the plaintiff is that he is Ramsagur Mitter's father's brother's daughter's son, and as such, he is, in the absence of any nearer heirs, the reversionary heir to Ramsagur. The defendant contends that one Panchanan Bose, who is Ramsagur Mitter's mother's brother's son, but who has made no claim to the property in dispute, is his heir in preference to the plaintiff. The Court below has found the plaintiff's relationship with Ramsagur Mitter established by evidence. The correctness of this finding has not been questioned on this appeal, and we see no reason to dissent from it. But the learned Subordinate Judge has held that the alleged relationship of Panchanan Bose with Ramsagur Mitter is not established, and that, even if it had been established, still the plaintiff would be the preferential heir of Ramsagur, and his finding of fact and his conclusion of law are both impugned on behalf of the respondent as incorrect. Three witnesses have been examined on behalf of the defendant to prove the alleged relationship between Panchanan Bose and Ramsagur Mitter; they are Harinath Mitter, a relation of Ramsagur, Sham Charan Mitter, a neighbour, and Panchanan Bose himself. There is no evidence to contradict them. The Court below has given no good reason for disbelieving their evidence; and we hesitate to affirm the finding of the Court below that the evidence is insufficient to prove that Panchanan Bose is the son of Ramsagur's maternal uncle. But in the view we take upon the question of law, it becomes unnecessary to determine this question of fact. We agree with the Court below in holding that even if Panchanan Bose be Ramsagur's maternal uncle's son, still the plaintiff would be the preferential heir of Ramsagur.

6. Whatever doubts might at one time have existed as to the heritable rights of the father's brother's daughter's son under the Bengal School of Hindu law [see Gobindo Hareekar v. Woomesh Chunder Boy (1864) W.R., F.B., 176], it must now be taken as settled by the decision of the Full Bench in the case of Guru Gobind Shaha v. Anund Lal Ghose (1870) 5 B.L.R., 15: 13 W.R., F.B., 49, that he is in the line of heirs as a sapinda relation within the meaning of the Dayabhaga, and the only ground upon which the learned Vakil for the respondent rests his contention on this point is that the plaintiff, though in the line of heirs of Ramsagur, is excluded by Panchanan, the maternal uncle's son, being entitled to succeed in preference to the father's brother's daughter's son. No authority is cited in support of this contention; and the only reason given in its favour is that, while the maternal uncle's son is mentioned in the Dayabhaga, the father's brother's daughter's son is not. This is not, however, strictly correct. For if the maternal uncle's son is mentioned, by necessary implication (and not expressly, as the argument assumes) in the Dayabhaga, chapter XI, section VI, paragraphs 13 and 20, so is the father's brother's daughter's son, as has been shown in the case of Guru Gobind Shaha v. Anund Lal Ghose (1870) 5 B.L.R., 15: 13 W.R., F.B., 49. And as for the exact position of the father's brother's daughter's son in the line of heirs, though that may be after the agnatic sapinda descendants of the great grandfather, a point upon which conflicting considerations may arise [see Huri Das Bundopadhya v. Barna Churn Chattopadhya (1888) I.L.R., 15 Cal., 780] there can be no doubt that he comes before the sapinda relations in the maternal line. This will be seen from the Dayabhaga, chapter XI, section VI, paragraphs 13 and 20, in the former of which the author indicates the reason for the succession of maternal kinsmen and for the preference of sapindas in the paternal over those in the maternal line, according to the doctrine of spiritual benefit. That reason is shortly this: The wealth of a deceased person, who can no longer have temporal enjoyment, should devolve on those who can confer spiritual benefit on him. Now the sapindas on the paternal line offer oblations to the paternal ancestors which the deceased was bound to offer, and in which he participates, and the sapindas in the maternal line offer oblations to the maternal ancestors, which the deceased was bound to offer, but in which he does not participate; so that, while they both confer spiritual benefit on the deceased, the former benefit him doubly by enabling him to participate in the oblations offered by them and by discharging a duty that was incumbent on him of offering oblations to certain ancestors, and the latter benefit him only in one way, namely, by offering certain oblations which he was bound to offer; and therefore while both are entitled to inherit his estate, the latter succeed only on failure of the former. After showing that his doctrine is in conformity with the texts of Manu, the author of the Dayabhaga states his conclusion in paragraph 20. We should add that there is a slight inaccuracy in Colebrooke's translation of this paragraph in the passage 'which the deceased shares, or which be was bound to offer,' where the word 'or' has been erroneously used for 'and.' The view we take that the father's brother's daughter's son comes in the order of succession before the maternal line is in accordance with the opinion of Jagannath (see Colebrooke's Digest, Book V, chapter VIII, section I, v. 434, commentary, Madras Edition, Vol. II, page 567).

7. Upon the second point all that is urged on behalf of the respondent, who impugns the correctness of the lower Court's finding, that the chak in dispute belonged to Ramsagur Mitter, is that the pottah of 1246 or 1839 (Ex. H. 2, p. 94 of the Paper Book), under which the chak is held, was granted to Uma Charan and Ishaneswari, and that the terms are very different from those of the pottah in favour of Ramsagur granted by Rani Sankari in 1227 or 1820. That may be so, but it is clear from the pottah of 1246 or 1839 (Ex. H. 2) that it was granted to Uma Charan and Ishaneswari as the heirs of Ramsagur, and that the tenure created by it was only a modified form of the tenure created in favour of Ramsagur by the pottah of Rani Sankari. We see no reason to disturb the finding arrived at by the Court below that the property in dispute appertained to the estate of Ramsagur Mitter.

8. Upon the third point, namely, that relating to the statute of limitation which has been decided by the lower Court in favour of the appellant, and which is raised before us by the respondent, the contention of the respondent is that the possession of Uma Charan Dutta and his heirs and successors was adverse to Ishaneswari, and that the claim of the plaintiff in respect of the eight anna share, over which such possession extended, was barred by limitation. In answer it is urged for the appellant that the possession of Uma Charan was not adverse to Ishaneswari, and that even if the possession of Uma Charan's heirs and successors was adverse, such adverse possession did not extend over a period of time sufficiently long to bar Ishaneswari's claim, before the present law, which gives the reversioner a fresh starting point, viz., from the date of the death of the person having the limited interest, first came into force. In other words, the appellant urges that when Uma Charan died in 1872, the claim of Ishaneswari had not become barred by the adverse possession, if adverse, of Uma Charan, and Uma Charan's heirs, and consequently that under the new law the period of limitation only begins to run against him as from the date of her death. In approaching this part of the case we have to deal with a condition of affairs which originated more than sixty years ago, and so far as the evidence goes, there are matters which are left in some obscurity. But the evidence appears to us to establish these facts.

9. The property in dispute appertained, as has been found above, to the estate of Ramsagur Mitter, and on his death in 1240 or 1833 descended to his two daughters, Anandmoyi and Ishaneswari, as his heiresses. On Anandmoyi's death in 1241 or 1834 one moiety of the property would appear to have been held by her son Uma Charan Dutta, who was then a minor, and the other moiety by Ishaneswari. Things continued in this state down to Joisto 1279 or May 1872, when Uma Charan died and disputes arose between his sons and Ishaneswari. The possession of one moiety by Uma Charan is admitted in the plaint; but the plaintiff says that Uma Charan held possession by virtue of a gift from his aunt Ishaneswari, who, out of affection, gave him that moiety of the property for his maintenance. There is, however, no evidence, leastways no reliable evidence, of this supposed gift, and the first mention of it is to be found in the pottah (Ex. III, page 32 of the Paper Book) executed by Ishaneswari in favour of one Mathura Nath Chakravarti in 1873, which is after the death of Uma Charan, and after the dispute had commenced with his sons. The learned Vakil for the appellant asks us to infer such a gift from the fact deposed to by several of the witnesses for the plaintiff, and by one of the witnesses (Kedar Nath Mitter) for the defendant, that Ishaneswari loved Uma Charan as if he were her son, and lived in joint mess with him, and he contends that but for a gift express or implied from Ishaneswari, Uma Charan could not have obtained the half share he held; as, on Anandmoyi's death Ishaneswari became, as the survivor, entitled by law to the whole of her father's estate. There might have been considerable force in this contention if there had been nothing to show how and under what circumstances the possession of Uma Charan commenced. But that is not the case. It appears from the plaintiff's Exhibits I and V (attested copies of a decree of the Sudder Dewani Adalat, dated the 1st February 1837 and a solenamah or deed of compromise, dated the 29th January 1840) and the defendant's Exhibit H. 2 (the pottah of 1246 already, referred to) that Ramsagur Mitter brought a suit to recover possession of the chak in dispute; that on his death during the pendency of that suit his daughter's son Uma Charan, then a minor, represented by his father Hara Chunder Dutta, and Ishaneswari, daughter of Ramsagur, were substituted as his legal representatives; that the suit resulted in a compromise pursuant to which a pottah was obtained from the proprietors of the land; and both in the deed of compromise and in the pottah Uma Charan and Ishaneswari are described and treated as the heirs of Ramsagur. Uma Charan's claim to one moiety of the property as a co-heir with his aunt Ishaneswari was thus asserted (erroneously no doubt), and this claim was not opposed by Ishaneswari who apparently was under a mistake as to the extent of her own right. Under the circumstances the fair inference appears to us to be that the admitted possession of Uma Charan from about 1838 to the date of his death in 1872, a period of nearly thirty-five years, ought to be attributed to the independent right which he asserted, and which was not disputed, as a co-heir of his grandfather, rather than to a gift which we are invited to infer from the circumstance of the affection which Ishaneswari felt for her nephew Uma Charan, and of their living in joint mess.

10. In our opinion the possession of Uma Charan from 1838 to 1872 was under this claim of right, and was adverse to his aunt Ishaneswari. After the death of Uma Charan, disputes undoubtedly arose between his sons and Ishaneswari as is admitted in the plaint, and the possession (so far as it extended) of Uma Charan's sons and of persons deriving title from them must, on the plaintiff's own admission, have been that of trespassers as against Ishaneswari. It is not by any means clear from the evidence that after Uma Charan's death, Ishaneswari had possession of the entire property. Debendra Kumar Dutta, one of the sons of Uma Charan, who is examined for the plaintiff, and who admits that he manages the case on behalf of the plaintiff, in his examination-in-chief cannot say more than this: after his father's death, 'Ishaneswari was in possession of the sixteen annas of many portions of the disputed chak, and realized the sixteen annas of the rents;' but in his cross examination he says: 'A year after the death of my father, my eldest brother Upendra died Mohaendra then may have been twelve or thirteen years old. On the death of my eldest brother, the second brother used to look after the estate. We had then a half share of the chak and the other half appertained to the estate of Ramsagur.' And a little further on he adds: 'We became dispossessed of the disputed chak from the time of the auction sale.' The evidence tends to the conclusion that after Uma Charan's death, though there was Some dispute about possession, the moiety of the property held by him remained in the possession of his sons until it was sold at auction at the instance of their creditors, and thereafter it remained in the possession of the auction-purchaser and of the persons deriving title from him.

11. It is in this manner, as appears to us, that possession has been held of the moiety of the property now under consideration, and the question is what is the effect in point of law of such possession as regards the plea of limitation.

12. It is contended for the defendant that, as the possession of Uma Charan's sons, and of persons deriving title from them must, in any view of the case, be held to be that of trespassers as against Ishaneswari, and as such possession bad continued for more than twelve years before her death, the reversioner's claim must be held to be barred by limitation, notwithstanding that she died within twelve years before the institution of this suit, inasmuch as Article 141 of schedule II of the Limitation Act only gives a fresh starting point to the reversioner from the date of the female heir's death, when the reversioner is entitled to the estate at such date, that is to say, when the interest of the female heir has not itself been barred at the date of her death. In our opinion the question is concluded by the Full Bench decision in the case of Srinath Kur v. Prosunno Kumar Ghose (1893) I.L.R., 9 Cal., 934, and we cannot agree with the view of the Allahabad High Court expressed in the case of Tikaram v. Shama Charan (1897) I.L.R., 20 All., 42, that the case of Srinath Kur v. Prosunno Kumar Ghose (1893) I.L.R., 9 Cal., 934, has been virtually overruled by the decisions of the Privy Council in the case of Lachhan Kunwar v. Anant Singh (1894) I.L.R., 22 Cal., 445: L.R. 22 I.A., 25.

13. It appears to us, therefore, not material to discuss this question any further more especially as we entertain the view that the admitted possession of Uma Charan from 1838 to 1872 must be taken to have been a possession adverse to Ishaneswari. Such adverse possession, which had continued for upwards of twelve years, and had barred Ishaneswari's claim before the new law (first enacted by Act IX of 1871) came into operation, must be held to bar the reversioner also. This view gains support from the decision of a Full Bench of this Court in Nobin Chunder Chuckerbutty v. Gurupersad Doss (1868) B.L.R., Sup. Vol., 1008: 9 W.R. 505, which has been approved by the Privy Council in Amirto Lal Dose v. Rajonee Kant Mitter (1875) 15 B.L.R., 10: 23 W.R., 214. And if the reversioner's right was barred before the new law of limitation came into force, as under the circumstances of this case in our judgment it was, that law (see Section 2 of Act XV of 1877) does not revive such right.

14. It was further contended by the learned Vakil for the appellant that Ishaneswari by allowing the pottah of 1246 (Exhibit H 2) to be taken by Uma Charan jointly with herself, precluded herself from suing Uma Charan as a trespasser, and as this happened before Uma Charan's possession had continued for twelve years, Uma Charan's possession could not upon the authority of the case of Nobin Chunder Chuckerbutty v. Gurupersad Doss (1868) B.L.R., Sup. Vol., 1008: 9 W.R., 505, bar the reversion. We do not think this argument is well-founded, viz., that the taking of the pottah jointly with Uma Charan can have any such effect. It seems to us that the pottah has one of two effects: either as an admission of Uma Charan's title to one moiety, to which his long possession of that moiety of the property is to be attributed, or as indicating an alienation by way of gift by Ishaneswari in favour of her nephew Uma Charan of that moiety, in which view the alternative contention put forward in the fourth point urged would prevail. The alienation to be implied from the transaction was made by Ishaneswari in favour of Uma Charan, who was one of the then next reversioners, and such alienation was subsequently ratified by her son Prosonno Kumar Bose, the only other next reversioner for the time being as appears from the mortgage deeds of 1861 and 1869 (Exhibits B and A).

15. In this view, the interest acquired by Uma Charan would, upon the authority of Nobokishore Sarma Roy v. Hari Nath Sarma Roy (1884) I.L.R., 10 Cal., 1102, be an absolute interest.

16. For the reasons given above we think that the suit, as regards the moiety of the chak which was held by Uma Charan, fails.

17. It remains now to consider the last two points, which relate to the remaining eight-anna share or the other moiety of the chak property.

18. Upon the fifth point the contention of the defendant, which has been accepted by the Court below, is that, as the suit brought by Ishaneswari in 1886 for setting aside the sale of an eight-anna share of the chak in dispute for arrears of rent was dismissed on the 19th of March 1887, that decision is binding on the reversioner, and the present suit, so far as it relates to that share, is barred as res judicata. On the other hand it is urged for the plaintiff-appellant, that, if what passed by the sale in execution of the decrees for arrears of rent was only the limited estate of Ishaneswari, the suit could only have been for reversal of the sale of that estate, and the dismissal of such a suit cannot be a bar to the present suit, which is brought for recovery of the absolute estate now vested in the reversioner. And it is further urged that, having regard to the main ground of dismissal of the former suit, namely, that the sale had been confirmed with the consent of Ishaneswari, given upon receipt of Rs. 2,040 by her, the decree in that suit cannot bind the reversioner. We are of opinion that the appellant's contention is sound. It is quite true that Ishaneswari, though owning only the limited estate of a Hindu female, represented the absolute estate for certain purposes, and that a decree in a suit concerning the absolute estate if obtained against her without fraud or collusion would be binding on the reversioner--see Kattama Nauchear v. The Rajah of Shivagunga (1863) 9 Moo. I.A., 539 (604); but if a suit, though concerning the absolute estate, is determined upon a ground personal to the female heir, for instance, if a suit brought by a Hindu widow to recover possession of immovable property appertaining to her husband's estate is dismissed on the ground of its having been alienated by her in favour of the defendant, in the absence of legal necessity being shown, the decree in such a case ought not to bind the reversioner. Now having regard to the ground upon which Ishaneswari's suit for reversal of sale was dismissed (see Exhibit IX, p. 44 of the Paper Book) we do not think it would be right to hold that the dismissal of that suit is a bar to the reversioner's claim. If what passed by that sale so sought to be set aside was only the limited, estate of Ishaneswari, the dismissal of the suit for setting that sale aside cannot bind the reversioner, whilst if what passed under that sale included also the interest of the reversionary heir, the question of res judicata becomes a superfluous one.

19. It remains, therefore, to determine what passed by the sale, which is the sixth and the last point. The sale, though for arrears of rent, was admittedly in execution of decrees for rent obtained by certain sharers, not the entire body of co-sharers, in the undivided estate under which the chak in dispute was held, and according to the law then in force (section 64 of Bengal Act VIII of 1869) it had 'the same effect as the sale of any immoveable property sold in execution of a decree, not being for arrears of rent payable in respect thereof,' that is to say, it would pass not the whole tenure, but only the right, title and interest of the judgment-debtor. The judgment-debtor in this case was Ishaneswari, who held the qualified estate of a Hindu daughter under the law of the Bengal School, but the Court below has held that as she represented the absolute estate for certain purposes, and, as the suits for rent were brought against her as representing the absolute estate, the whole inheritance and not merely her limited interest passed by the sale in execution of the rent decrees; and the decision of the Privy Council in Jugul Kishore v. Jotendro Mohun Tagore (1884) I.L.R., 10 Cal. 985: L.R., 11 I.A. 66, is relied upon in support of this view. The rule laid down in that case is this: 'If the suit is simply for a personal claim against the widow then merely the widow's qualified interest is sold and the reversionary interest is not bound by it. If, on the other hand, the suit is against the widow in respect of the estate, or for a cause which is not a mere personal cause of action against the widow, then the whole estate passes.' The suit against Ishaneswari was admittedly one for arrears of rent, and the question is whether a claim for arrears of rent is a personal claim against the widow, or is one against the inheritance which, for certain purposes, she represents. The point is not free from difficulty, and there is some conflict of authority in this Court upon it, the case of Tiluck Chunder Chuckerbutty v. Muddun Mohun Joogee, (l869) 12 B.L.R., 143, note: 12 W.R., 504; and Anund Moyee Dossee v. Mohendro Narain Bass (1871) 15 W.R., 264, being in favour of the respondent, while Mohima Chunder Roy Chowdhry v. Ram Kishore Acharjee Chowdhry (1875) 15 B.L.R., 142: 23 W.R., 174 [in which Tiluck Chunder Chuckerbutty v. Muddun Mohun Joogee (1869.) 12 B.L.R., 143 note: 12 W.R., 504, was cited and considered] and Kristo Gobind Majumdar v. Hem Chunder Chowdhry (1889) I.L.R., 16 Cal., 511, support the opposite view. As for the case of Jugul Kishore v. Jotendro Mohun Tagore (1884) I.L.R., 10 Cal., 985: L.R., 11 I.A., 66, relied upon by the Court below, though it lays down the general principle quoted above, the facts of that case were different from those in the case we are now considering. There the sale was in execution of a decree for mesne profits and costs against a Hindu widow, who was sued, along with certain reversionary heirs, for possession of immoveable property, and for mesne profits. Here the suit for rent was brought against Ishaneswari alone, and in respect of arrears which accrued due after her father's death, and as she was in enjoyment of the rents and profits of the chak, the liability for rent ought to be regarded as her personal liability and ought not to be held as attaching to the reversion, unless the landlord proceeded to bring the tenure itself to sale under the special provisions of the rent law. In Tiluck Chunder Chuckerbutty v. Muddun Mohun Joogee (1869) 12 B.L.R., 143 note: 12 W.R., 504, the landlord had, as had been pointed out by the Privy Council in Baijun Doobey v. Brij Bhookun Lall (1875) I.L.R., 1 Cal., 133: L.R., 2 I.A., 275, proceeded against the tenure under the rent law, and the same remark also applies to the case of Anundmoyee Dossee v. Mohendro Narain Das (1871) 15 W.R., 264.

20. The present case in our opinion is rather analogous in principle to the case of Baijun Doobey v. Brij Bhookun Lall (1875) I.L.R., 1 Cal., 133: L.R. 2 I.A., 275, in which the Privy Council held that & sale in execution of a decree against a Hindu widow for arrears or her mother-in-law's maintenance which was a charge on the inheritance, passed only the widow's estate and following that case and the case of Mohima Chunder Roy Chowdhry v. Ram Kishore Acharjee Chowdhry (1875) 15 B.L.R., 143 note: 23 W.R., 174, we hold that the sale in question passed only the limited estate of Ishaneswari.

21. The result is that the decree of the Court below, so far as it relates to the eight-anna share of the chak in dispute that was sold on the 5th of January 1885, must be set aside, and the plaintiff's suit in respect of that share decreed with mesne profits and costs in proportion. The decree dismissing the suit as regards the remaining eight annas will stand. As each party has partially succeeded and partially failed in this appeal there will be no costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //