Bhabakali Banerjee vs Saibalini Devi

P.N. Mookerjee, J.—This appeal is by Defendant No. 1 and it arises out of a suit for partition and accounts. The parties are near relations, the Plaintiff Sm. Saibalini Devi being the surviving senior widow of Defendant No. 1 Bhabakali Banerjee''s younger brother Sibakali Banerjee who died on or about Kartick 4, 1953 B.S. Defendant No. 2 Kamalini is the surviving junior widow of Sibakali. Sibakali left the two widows as his heirs. He also left a daughter Nilima, born of the Plaintiff. Nilima was unmarried at the date of the present suit and also at the date of the trial court decree but she has since been married during the pendency of the appeal in this Court.

The suit properties are described in two Schedules, Ka and Kha, of the plaint, Ka containing the immoveable properties, Kha the moveable properties. Schedule Ka comprised 10 items which were claimed by the Plaintiff to be the joint properties of the two brothers Bhabakali (Defendant No. 1) and Sibakali, the deceased husband of the Plaintiff and Defendant No. 2, and Schedule Kha comprised the alleged joint moveables of the parties. The Plaintiff claimed a 4 as. share of all the above properties as one of the two widow heirs of Sibakali, the remaining 12 annas belonging, according to her, to Defendant No. 1 (8 as.) and Defendant No. 2 (4 as.) and she demanded partition on that footing. She also claimed accounts from Defendant No. 1 from after the death of her husband Sibakali till delivery of possession on partition. There was also a prayer in the plaint for the making of a provision for the marriage of the Plaintiff''s daughter Nilima who was unmarried at the date of the suit but has since been married, as stated above.

The plaint alleged inter alia that most of the suit properties belonged to the plaintiff''s father-in-law Protap Chandra Banerjee who died about the year 1912-13, leaving the two sons Bhabakali (Defendant No. 1) and Sibakali (husband of Plaintiff and Defendant No. 2) as his heirs and that, after Protap''s death the rest or the remaining properties were acquired by the said two brothers who were living jointly as members of a Hindu Joint Family and the income of all the said properties was thrown into the common stock of the two brothers. The plaint further alleged that Defendant No. 1 was the Karta of the joint family constituted by the two brothers as aforesaid and, after Sibakali''s death, by the present parties, and charged him with misappropriating the incomes and usufructs of the above joint properties.

The suit was contested by Defendant No. 1.

The defence of Defendant No. 1 was inter alia a denial of the Plaintiff''s allegations of misappropriation and of the Defendant''s alleged liability for accounts. The Defendant No. 1 also imputed in chastity to the Plaintiff during her husband''s life-time and founded thereon a plea of her total exclusion from inheritance to her husband. Nilima was stated to be an illegitimate child. It was alleged further that, during his life-time, Sibakali was in charge of and used to look after all the above properties of which items Nos. 2, 3, and 5 of Schedule (Ka) were the separate and self-acquired properties of Defendant No. 1 and item No. 9 belonged to Defendant No. 1''s wife Hembarani exclusively and item Nos. 1, 4, 6, 7, 8 and 10, barring the structures on C.S. Dag No. 582 of item No. 1, were the only immoveable properties of the parries. Existence of any joint moveable save and except two bullocks, two COWS and two calves was denied.

The learned Subordinate Judge decreed the suit preliminary in part, declaring the Plaintiff''s one-fourth share in Schedule (Ka) barring item No. 9 and in Schedule (Kha) in respect of six milk cows, two plough bullocks, two calves and the utensils, furniture and corrugated sheets, mentioned therein. He also passed a decree for accounts and awarded a sum of Rs. 2,000 for Nilima''s marriage and charged the same on the half-share of the properties which would be allotted to the Plaintiff and Defendant No. 2. He also gave the Plaintiff four-fifths of her costs against Defendant No. 1. The learned Subordinate Judge categorically rejected the defence plea of the Plaintiff''s unchastity as wholly unfounded.

Feeling aggrieved, the Defendant No. 1 referred the present appeal to this Court and, in support of it, his learned Advocate Mr. Das Gupta urged only two points, namely, (1) that items Nos. 2, 3 and 5 of Schedule (Ka) as also the structures on C.S. Dag No. 582 and appertaining the item No. 1 of that Schedule, were the separate and self-acquired properties of the answering Defendant Nos. 1 and 2 that he was not liable to render accounts. The Plaintiff, in her turn, filed a cross-objection against the dismissal of her claim to item No. 9. She also claimed full costs from the Defendant No. 1.

We shall deal with the appeal first. The principal dispute here is with regard to items Nos. 2, 3 and 5 of Schedule (Ka) and the structures on C.S. Dag No. 582 of item No. 1. As to the first three items of properties which admittedly stand in the name of the Appellant-Defendant No. 1, bis learned Advocate Mr. Bi.jan Bihari Das Gupta contended that the learned Subordinate Judge was wrong in raising in respect of those properties the presumption that they were joint or joint family properties of the two brothers Bhabakali and Sibakali and that, in any event, he should have held that such presumption, if any, had been amply rebutted by the materials before the Court and that the apparent was the real state of things. The properties no doubt stand in the name of Defendant No. 1 but, at the same time, it has also been sufficiently proved in this case that the two brothers formed a Hindu joint family at the time of acquisition of the said properties and that the family had sufficient nucleus of ancestral funds available for such acquisition. That the two brothers were joint at least in properties and had sufficient ancestral properties is proved even by the Defendant''s own evidence and his story that, with the joint funds, even the family members could not be maintained deserved no serious consideration. There is, however, one special feature in this case, on which Mr. Das Gupta strongly relied for excluding or negativing the presumption, referred to above, and that feature requires some consideration. It appears clear from the record that Defendant No. 1 Bhabakali was away on service when the above items of properties were acquired in his name. The acquisitions were made through Sibakali who was in charge of the home affairs including the management of the properties. Item No. 2 appears to have been purchased at a mortgage sale sometime in 1935. The mortgage was for Its. 150 in the name of Bhabakali and the purchase was made in execution of the decree, obtained thereon (vide Ex. I). Items Nos. 3 and 5 were purchased in 1938 (vide Ex. C) for a sum of Rs. 700 on the strength of an agreement for sale in the name of Bhabakali, of which specific performance had to be enforced by suit in or about the year 1937 (vide Ex. E).

It is contended by Mr. Das Gupta that the presumption, referred to above, would arise only if the acquirer had access to the joint family fund so as to make it available for the particular purchase or acquisition and, as, admittedly, this case, Sibakali was in charge of the joint family properties and Bhabakali was living away, Bhabakali had no access to the joint family fund and could not make the purchases from the said fund. There is thus no scope for the. above presumption. It is to be remembered, however, that the disputed acquisitions were made through Sibakali who admittedly had access to the joint family funds. The real question, therefore, is whether Sibakali could be expected to have utilised joint family funds for purchasing these particular properties in Bhabakali''s name. Ordinarily this may not have been very likely but the present case is somewhat exceptional and Sibakali appears to have been a man of highly religious temperament and was highly respectful and obedient to his elder brother Bhabakali and, having regard to the evidence about his nature and character, we do not think that it was at all unlikely that he would acquire the properties in the name of Bhabakali although the acquisition would be made with joint family funds. That, on the other hand, seems to be quite probable and eminently likely in the facts before us. In these circumstances, we do not think that the presumption would be excluded in this case by applying the rule in that behalf laid down in the two cases, cited by Mr. Das Gupta, namely, Amrita Lal Sen and Ors. v. Swath Lal Sen Ors. (1941) 46 C.W.N. 232 and Charandasi Debi v. Kanai Lal Moitra and Ors. (1952) 58 C.W.N. 980 where, in our opinion, the acquirer mentioned must refer to the hand or the person who or which actually or, as a matter of fact, makes the acquisition in question or negotiates or completes the transaction, though it may be made for or on behalf of or in the name of some other person.

The presumption then would aid the Plaintiff unless it be held to have been rebutted by circumstances or otherwise. For such rebuttal Mr. Das Gupta relied on Bhabakali''s evidence. It is difficult, however, to accept that evidence on its face value and, on that uncorroborated testimony, we are not prepared to hold that Bhabakali supplied the funds for acquiring the disputed items Nos. 2, 3 and 5, particularly when the learned Subordinate Judge who saw the witness and heard his evidence did not choose to place any reliance on it. We have also held above that the fact that Sibakali was in charge of those transactions which were made in Bhabakali''s name would not, in the circumstances of this case, preclude the raising of the above presumption and would not, therefore, rebut it. The same remarks apply to Sibakali''s part in the preparation of the Record of Rights which records the above properties in Bhabakali''s name. We agree, therefore, with the learned Subordinate Judge, that, in regard to the above items Nos. 2, 3 and 5 of Schedule (Ka) the presumption that they were the joint properties of the two brothers has not been rebutted and, accordingly, the Appellant''s contention in that behalf must fail.

With regard to the structures, however, standing on C.S. Dag No. 582, this appeal ought to succeed in part and the case must go back to the trial court for consideration of the question of title with regard to the same. Those structures-a pucca building and a tin-roofed ghar-were claimed by the Defendant N. 1 to have been constructed with his own money and he asserted his separate independent title to the same in his written statement and also in his evidence. The learned Subordinate Judge, however, evidently overlooked this part of the case when he dealt with item No. 1 as admittedly joint. Having regard to the materials before us, we are unable to hold that the claim or assertion of separate title with regard to these structures was given up by the Defendant No. 1 and that the court below was justified in treating them as admittedly joint. This aspect of the matter, therefore, requires consideration and, as it seems to us that, due to some misunderstanding or confusion of thought, the parties and the court did not pay proper attention to it and all available materials on the above question of title, were not placed on the record, we would give the parties liberty to adduce such further evidence on this point as they might choose to adduce and the court below will then decide this question of title according to law on the evidence, now on record, and on the further evidence, if any, which may be adduced in the Case in pursuance of the leave aforesaid.

As the title to the above structures and the character of the funds or materials, used for their construction, may have some bearing on the question of accounts between the parties, we are also discharging the present decree for accounts with a direction to the court below to consider and decide the same after and in accordance with its finding on the above question of title and here also the parties will be entitled to adduce further evidence to the extent necessary with the leave of the court below.

The appeal would thus succeed to this extent that the case would go back to the trial court for consideration of the question of title with regard to the structures on C.S. Dag No. 582 and the question of accounts in the light of the directions, given above.

We now take up the Plaintiff''s cross-objection. So far as this cross-objection relates to item No. 9 of Schedule (Ka) of the plaint it is bound to fail as, apart from any other question, the Plaintiff cannot claim it as the joint property of the two. brothers in the absence of the Defendant No. 1''s wife Hembarani, in whose name, admittedly, the relative document of title stands but who was not made a party in the suit. We are also unable to hold that, on the materials before the court, the learned Subordinate Judge was in error in holding that this property (item No. 9) did not belong to the joint family. Sibakali''s diary [Ex. A(1)] practically concludes the Plaintiff as to the source of the money with which this. property was acquired and there is hardly any evidence worth the name to justify the inference that it was thrown into the common stock of the two brothers. We may also observe in passing that this theory of "thrown into the "common stock" would not apply to any of the other properties too as, if they are otherwise the Defendant No. 1''s self-acquired properties, the necessary intention for the application of the above theory has not been proved or established in this case. As, however, those other items (barring, of course, the structures on C.S. Dag No. 582) have been otherwise held to be joint properties of the parties, no further question arises in regard to the same. We, therefore, reject the Plaintiff''s claim regarding item No. 9 of Schedule (Ka).

As to costs also, we are not inclined to disturb the trial court''s order, as we feel that, in making its decree for costs, that court has duly taken into consideration the unfounded outrageous allegation of the Defendant No. 1 against the Plaintiff''s character which could not be proved to any extent whatsoever.

We would, accordingly allow the appeal to the extent, indicated above, and dismiss the cross-objection. We would, however, allow the Plaintiff-Respondent a consolidated cost of Rs. 100 in the appeal against the Defendant No. 1 Appellant, to be paid to her within a month from this date. There will be no order for costs in the cross-objection. The Plaintiff will also be entitled to a sum of Rs. 25 per month from the Defendant No. 1 on account of her share of the income or usufruct of the joint properties with effect from the month of January, 1958, payable within the 15th of the next succeeding month according to the English calendar until final disposal of the suit. The Defendant No. 1 will also pay her (the Plaintiff) a sum of Rs. 300 on account of arrears of such income or usufruct within four months from this date. In case of any default on the part of the Defendant No. 1 in the making of any of the above payments, it will be open to the Plaintiff to mention the matter before this Court for such orders as to it may seem fit and proper.

We direct further that Defendant No. 1, who is stated to have been appointed by the Court below Receiver in respect of the suit properties in terms of and pursuant to the order of this Court, passed on February 6, 1953, in Civil Rule No. 76(F) of 1953, will continue to act as such Receiver until the final disposal of the suit on the same terms and conditions, as laid down in the said order, with this added direction that he will make the above monthly payments of Rs. 25 to the Plaintiff as such Receiver so long as he will remain in charge of the suit properties in that capacity.

The appeal is allowed as above, the decree of the trial court is set aside and the case is remitted to that court for further hearing and disposal according to law in terms of this judgment. The cross-objection is dismissed. Direction for costs has already been given above and need not be repeated.

Sarkar, J.

I agree.