Dakhina Kali Debi vs Jagadishwar Buttacharjee

The Respondent, the Plaintiff in the Court below, is the reversionary heir of Ram Chunder Sanyal whose widow Karunamoyi died in 1293. The Appellant is the daughter of Karunamoyi''s daughter Chandramoni. The question is whether the properties claimed by the Respondent formed part of Ram Chandra''s estate or whether they were the separate properties of Karunamoyi. It is now conceded that Karunamoyi inherited from her husband all the properties mentioned in the first schedule of the plaint and that she acquired after his death all the properties mentioned In the second schedule. We do not propose to interfere with the decree of the lower Court in so far as it gives to the Respondent all the properties in the first schedule and the first of the properties in the second schedule. It is, we consider, established that he is the heir of Ram Chandra and that he is in possession of the last mentioned property as well as the first nine properties of the first schedule. The real contest is as to the other four properties of the second schedule which are in the possession of the Appellant.

Ram Chandra died before 1842, but the exact time is not known. One witness says he died in 1836, another in 1841. At some time before 1857 Karunamoyi, her mother-in-law Golakmoni, Chintamoni and the Appellant all went the Benares and resided there.

In 1842 Karunamoyi purchased for Rs. 13,600 a 3 anna share of the estate Ranabari which was by far the most valuable of her acquisitions. In 1843 she purchased for Rs. 1,600 a 9-anna share of estate mouzah Staggachi, and in 1857 she purchased for Rs. 600 in the name of Chintamoni''s husband the land and houses at Benares. We know little about the fourth property, which is a share of mouzah Jhoojkai, paying a small revenue of Rs. 3-3-5 beyond that it is said to be a resumed khos mahal of Government, and that in 1843 Karunamoyi got a summary settlement of it until further orders or until a permanent settlement should be made, in 1864 Karunamoyi gave a putni lease of all those properties, except the land and house at Benares, to certain mandals at an annual rent of Rs. 2,607-8, receiving a bonus of Rs. 4,000.

In 1859 she made a Will by which she left all her property inherited or acquired to the son whom Chandramoni, then a childless widow, might adopt, or failing the adoption to Chandramoni for life with remainder to the Appellant and her heirs. In 1869 she made another Will, a copy of which obtained from the Registration Office was put in by the Respondent. The genuineness of this is disputed, but I must take it to be sufficiently proved. It is spoken to by one witness and the Appellant did not produce the original, although she made use of it in 1887, when she obtained a certificate under Act XXVII of 1860 to collect debts due to Karunamoyi, and it was afterwards returned to her. This Will, which is only of importance for some recitals, relied on by the Respondent and to which I will allude hereafter, refers to Chandramoni''s death, to the previous Will, and to the provisions in favour of the Appellant which are not expressly revoked, and it directs that the latter as executrix should devote the proceeds of her properties inherited or acquired to religious purposes.

There is no evidence that Ram Chandra left any money or properly other than the properties mentioned in the first schedule of the plaint, the income derived from which, so far as can be gathered from the evidence, was something less than Rs. 300 a year. There was clearly, therefore, no surplus income of the inherited properties from which the properties could have been purchased, and the learned pleader for the Respondent conceded this. On the other hand, there is no evidence that Karunamoyi had any separate money or property of her own.

On the Respondent''s side there is some evidence that Ramdhan (Golakmoni''s husband) was a well-to-do man and that Karunamoyi came from a poor family. One witness Sarat Chandra speaks to some conversations he heard when a boy of nine years old about the acquisition of the Ranabari property. He says that Golakmoni wanted the purchase to be made in the joint names of herself and Karunamoyi because the purchase-money had been acquired by her husband, but that it was decided to make it in Karunamoyi''s name alone in order to avoid giving her pain and because she had a daughter. On the other side there is some equally worthless evidence of statements of Karunamoyi that she made the purchases out of her own money and that she got money by selling her ornaments. As the case stands, there is no evidence of the source from which the purchase-money came and no evidence of facts from which an inference can be drawn.

The Subordinate Judge says, and it is argued here, that it is for the Appellant to show that the properties were Karunamoyi''s stridhan. This seems to me wrong. There is, I think, no presumption of law that property acquired by a Hindu widow forms part of her husband''s estate, and if there is no such presumption, proof that she inherited some property, but quite insufficient for the acquisition would not give rise to one. In Chandramoni Dassi v. Joykissen Sirkar I. W. R. 107 the Plaintiff claimed the property by gift from a Hindu widow who was said to have received it from her husband and the claim was against the attaching creditors of the Plaintiff''s donor. There being no evidence bearing upon the question of stridhan, the Court said that the burden of proof was on the person claiming it as such. But that person was the Plaintiff and the burden of proof in that case may very properly have been placed upon him. I do not understand that it was intended to lay down any principle of law as to the burden of proof in such cases.

The case of Narayana v. Krishna I. L R. 8 Mad 214 went much further in the opposite direction than it is necessary to go here. That was a suit for the partition of joint family property. The Defendants claimed as their own a sum of money standing in the name of their deceased mother, and the Plaintiff claimed a moiety of the sum as joint-family property. The Court said there was no presumption that property standing in the name of a female member of the family was joint property, because she could hold property of her own and the presumption from coparcenership did not arise as she was not a coparcener. Here there is no question of a joint family and I know of no principle of Hindu law on which it can be said that when a Hindu widow purchases property, it is to be presumed that she purchased it out of her husband''s estate, although the estate may have been quite insufficient for the purpose. The question from what source the purchase-money came seems to be one of fact, and it is for the Plaintiff to start his case with proof sufficient to shift the onus, proof at least of facts from which an inference can be drawn. It may be that very little proof is required, but the necessary amount is, I consider, wanting here.

It is true that Karunamoyi in the kobalas, leases and Wills dealing with the properties does not say that they were her stridhan or that she purchased them out of her stridhan. She says, she purchased them without stating the source from which she got the money, and no reasonable inference can be drawn from that one way or the other. In the Wills she distinguishes the properties inherited from the properties purchased and from the fact that she disposed of them and all in the same way it cannot be said that she was treating them all as part of her husband''s estate.

She had of course no power to dispose by Will of the inherited properties.

In the Will of 1859, she says that the Benares property was purchased by means of money given to her by her husband, and in the Will of 1869 that she purchased them out of her husband''s funds. The property was purchased in the name of her son-in-law and there was probably some reason for the statement. Having regard to the time when the purchase was made, there is no different ground for any distinction between this and the other properties.

Three circumstances are relied on as justifying an inference against the Appellant : (1) That in the kobala of 1842, she is described as widow of Ram Chandra and mother of Chandramoni; (2) That Chandramoni is a witness to the putni lease of 1864; (3) That in the Will of 1869, Golakmoni is described as her heiress under the Shastras. I can attach no importance to any of them and from the first two no inference on either direction can be drawn. It is said that Karunamoyi would not have made the third statement if she had not regarded the properties as part of her husband''s estate. Whether it was made in an erroneous view of the law or from some feeling of respect for her old mother-in-law with whom she had lived for many years, it is clear that she did not in either Will treat her as the person who would succeed to the properties.

It is quite possible, that the money may have been Golakmoni''s.

In my opinion the Respondent has failed to make out any case as regards the properties Nos. 2 to 5 of the second schedule of the plaint, and the appeal must must as regards them succeed. The decree of the Subordinate Judge is, therefore, set aside in so far as it relates to those properties and the Plaintiff''s claim to them is dismissed. The decree will stand as regards the other properties. The costs in this Court and the lower Court will be proportionate to the extent to which the claim and the appeal have respectively succeeded.-

Wilkins, J.

I agree in the judgment which has just been pronounced and in the conclusions arrived at; I was at first inclined to think that, where a Hindu widow in possession of her husband''s estate, makes larger purchases of properties, it is incumbent upon her and upon those claiming through her to show that at least she had some separate property of her own out of which such purchases might have been made. But after carefully considering this question, I have come to the conclusion that there is no justification in law for throwing the onus upon the widow.

The case of Chandramoni Dassi v. Joykissen Sirkar W. R. 107 cannot be relied upon as an authority for this proposition, and there are no cases which I have been able to trace in support of it. The result is that the onus in the present case lies in the first instance upon the Plaintiff who claims these properties, and I entirely agree that that onus has, for the reasons given, not been sufficiently discharged.