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Sm. Brojeswari Dassi Vs. Monoranjan Dutta and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1937Cal167
AppellantSm. Brojeswari Dassi
RespondentMonoranjan Dutta and anr.
Cases ReferredRam Krishna Prodhan v. Kousalya Mani Dasi
Excerpt:
- .....by benode. ananta died leaving a son mohendra who inherited his half share. benode died leaving a widow kusum kamini who inherited her husband's half share as her life estate. the plaintiff is a son of one of the daughters of gopal. in 1926, the widow kusum kamini executed the deed of surrender in question in favour of mohendra. in the deed she stated that she was surrendering to mohendra, who was the next reversionary heir, all the properties which she inherited from her husband and she totally divested herself of all rights in the estate left by her husband. the said estate was described in the schedule to the document. that schedule described various properties in area, over 32 bighas, but there is one omission and that is a piece of homestead land about 6 cottahs in area in dumka.....
Judgment:

M.C. Ghose, J.

1. This is an appeal by defendant 2 in a suit for a declaration that the deed of surrender by a widow of her husband's estate is void and inoperative. The trial Court held that the deed of surrender was valid and disposed of the suit. In appeal, the learned District Judge has held that the deed of surrender was invalid and has decreed the suit. The facts which are not in dispute are that the properties belonged to one Gopal who died leaving two sons Ananta and Benode and two or more daughters. The property was inherited in half share by Ananta and half share by Benode. Ananta died leaving a son Mohendra who inherited his half share. Benode died leaving a widow Kusum Kamini who inherited her husband's half share as her life estate. The plaintiff is a son of one of the daughters of Gopal. In 1926, the widow Kusum Kamini executed the deed of surrender in question in favour of Mohendra. In the deed she stated that she was surrendering to Mohendra, who was the next reversionary heir, all the properties which she inherited from her husband and she totally divested herself of all rights in the estate left by her husband. The said estate was described in the schedule to the document. That schedule described various properties in area, over 32 bighas, but there is one omission and that is a piece of homestead land about 6 cottahs in area in Dumka town. The plaintiff's case is that this Dumka property of 6 cottahs was part of the estate left by Benode to the widow Kusum Kamini and as she did not) include it in the, schedule to the deed of surrender, the deed was invalid on the basis that no deed, of surrender by the widow is valid unless the entire estate is surrendered.

2. The trial Court held that the widow had in fact transferred the whole of the estate of her husband and that as to the Dumka property she was under the impression that she had no subsisting interest in it as against the plaintiff. On that basis, the trial Court held that the deed of surrender was valid. In appeal, the learned District Judge held on a consideration of the facts that in the eye of the law Kusum Kamini's interest in the Dumka property subsisted up to the date of surrender in 1926 and the omission of that property rendered the deed of surrender invalid. The fact found by the Court below as to this Dumka property was that it was a piece of land about 6 cottahs in area. In the eastern portion of the land, the plaintiff Monoranjan had his house and he apparently wrongfully took possession of the western portion of 6 cottahs and claimed it as his own property. In 1892 the widow's husband Benode brought a title suit against the plaintiff Monoranjan and had a decree that the western 6 cottahs were his property but though the decree was obtained against the present plaintiff, the present plaintiff continued to occupy the Dumka land. Not only did he possess it but he did not pay any rent either to the husband or to his widow Kusum Kamini. Indeed, he raised money mortgaging this land as his own land. The trial Court found that from 1898 to 1926, a period of over 27 years, the plaintiff had been in wrongful possession of the land not paying any rent and denying the title of the widow, that in this position the widow was under the impression, that she had no subsisting interest in the Dumka property and that is why she did not mention it in the deed of surrender. The learned District Judge finds that though the plaintiff Monoranjan treated the entire property as his own, in the eye of the law Kusum Kamini's interest in the western portion subsisted up to the time of surrender.

3. In our opinion, the learned District Judge may be right in his view that in the eye of the law Kusum Kamini's interest subsisted in 1926. But having regard to the conduct of the plaintiff who had kept the widow and her husband before her out of possession of the property she had good reason to believe that she had no subsisting interest in it. Her omission of this property, therefore, cannot truly be considered to invalidate the deed. It is to be noted that the schedule enumerates the properties, but in the last portion of the deed she states that she becomes totally divested of all her rights in the estate left by her husband and all the rights in the said estate vest in the grantee. This last portion clearly means that the whole estate inherited by her from her husband is surrendered by her to the next reversioner. There is no portion kept back for herself. The omission of the Dumka property in the schedule has been explained. The omission in the view of the District Judge was a defect in the deed. The question is when there is such a defect, is the deed to be considered invalid? When two constructions of an instrument are possible, the law favours the construction which will make it valid. In understanding a deed, it should be taken most beneficially for the party in whose favour it is, made. A deed should not be considered void where the words may be applied to any intent to make it good: see Throckmerton v. Tracy 75 ER 222. In our opinion, the interpretation of the document by the trial Court was correct.

4. It was next urged by the learned advocate for the respondent that the deed of surrender was executed on 12th October and the grantee died about a fortnight later and the deed was registered on 2nd February, nearly four months after the execution. In the circumstances, it is argued that the surrender was not valid. As to this, the finding of the Courts is that Mohendra accepted the surrender when the deed was executed. He was already in possession of a half share of the ancestral property. It was the other half share which was being surrendered to him by the widow. He accepted the deed from the widow and the learned District Judge has concluded that in the circumstances the handing over of the deed of surrender to grantee (Mohendra) and the latter's acceptance of it was sufficient acceptance by him of the surrender of the estate.

5. The appeal is allowed and the decree of the trial Court restored with costs throughout; hearing fee two gold mohurs.

B.K. Mnkherji, J.

6. I agree with my learned brother that the appeal should be allowed.

7. The principal ground upon which the plaintiff based his case, namely that the document of surrender was got up and fabricated by the defendants after the death of Mohendra, has been negatived by both the Courts below. But the appellate Court has held in favour of the plaintiff on the solitary ground that the surrender being partial and not complete was ineffective in law to vest the inheritance in the reversioner. The only property which was left out from the deed of surrender was a small plot of land with regard to which there was a suit commenced by Benode, the husband of defendant 1, against this very plaintiff and his brother in the year 1898. As both Courts have found, the decree was for khas possession of a portion and for the rest Monoranjan and his brother were held to be subtenants under Benode. The decree, however, was never executed and the plaintiff remained in possession all through and even mortgaged the property as his own. It is true that there were certain claim cases filed by or on behalf of Kusum Kamini, but even here the appellate Court has found that they were done at the instance of the present plaintiff. If we look to the document as a whole, we find that although reference was made to the list of properties specified in the schedule, there was a general statement at the end of the document to the effect that to no portion of the properties inherited from her husband the lady retained any right and she divested herself completely of the total inheritance. The law relating to surrender is too well known now and has been embodied in some of the more recent pronouncements of the Judicial Committee, to wit, Rangaswami Gounden v. Nachiappa Gounden AIR 1918 P C 196; Sureshwar v. Misrain AIR 1921 P C 107 and Vytla Sitanna v. Marivada Viranna . The test is whether there was a bona fide and total renunciation of the widow's right to hold the property and this renunciation may be effected by any voluntary act on her part which has the effect of effacing herself from the succession as completely as if she had died. If we look to the tenor of the document, the conclusion becomes irresistible that she intended to walk out of the entire property left by her husband without reserving or retaining any item of it for herself. Whether this property was left out as being very small or she laboured under an honest belief that she ceased to be the owner of this property are, in our opinion, really immaterial if there was an intention to effect complete self-effacement in the document itself, as we have already indicated. The case presents certain similar features with that in Ram Krishna Prodhan v. Kousalya Mani Dasi : AIR1935Cal689 , and we are of opinion that inspite of this omission it was a complete surrender of the entire estate of the widow and hence the plaintiff's suit must fail.


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