Kalipada Dutta and Others vs Tara Pado Rakshit and Others

The appellants were some of the defendants in the action and the respondents in the court of appeal below. They have come up to this Court against the judgment of reversal. The plaintiff-respondents are heirs of the original plaintiff Girish Chandra Rakshit, who having died, the respondents first set were substituted in his place. The other respondents were pro forma defendants in the suit.

The facts are short and simple. Shorn of all details, one Jagannath Dutta died leaving behind two wives, the first being Madhubala Dasy and the second Subhadra Bala Dasy. The first wife Madhubala Dasy left behind four daughters, Kripamoyee, Sukhada, Sumi-tra alias Changi and Bidhumukhi. The sole plaintiff, who had instituted the suit, was one of the sons of Sukhada aforementioned aS has already been stated above, the plaintiff Girish Chandra Rakshit died during the course of this litigation leaving behind the respondents first set in this appeal From the second wife of Jagannath Dutta, there were two sons and, one daughter. The daughter Purnabala Dasy died leaving behind no issue. One son Bishna Charan left behind two sons, Dwijapadda, defendant No. 3 and Niranjan, defendant No. 4; and Kulesh Dutta, who was original defendant No. 1, left behind a son Govind Dutta Kali Pada, defendant No. 2 and the latter''s son Ajit Dutta, defendant No. 5. As has already been pointed out earlier, all these defendants 2 to 5 have been described as pro forma defendants. The real contest was between Girish Chandra Rakshit and Kulesh Dutta, defendant No. 1, whose respective heirs are litigating under the same title as their forbears. Sumitra alias Changi, the daughter from the first wife Madhubala Dasy left behind certain properties to which Girish Chandra Dutta laid claim as the son of Sukhada, who was the own sister of Sumitra as sister''s son. On the contrary, Kulesh Dutta, defendant No. 1, the predecessor-in-interest of the present appellants was claiming a rival title and preferential claim to the properties left behind by Sumitra as a step brother. This in a nutshell is the contest between the parties.

Admittedly the parties are governed by the Dayabhaga School of Hindu Law. Admittedly again the property left behind by Sumitra was her Stridhan property. While according to the appellants, the property fell within ''Yantuka'' class of Stridhan property, the brother of Sumitra would be entitled to have a preferential claim, the case of the contesting respondents is that the property fell within ''Ayantaka'' class of Stridhan property.

There is one more fact which needs to be noticed here. One of the alternative stands of defendant No. 1 in the suit was that Sukhada, the mother of the plaintiff was not the daughter of Jagannath Dutta at all. On this point, the concurrent findings of both the courts below are that Sukhada was the daughter of Jagannath Dutta and own sister of Sumitra. The finding of the final court of fact is that the property which is the subject-matter of the suit came to Sumitra as a gift from her father Jagannath Dutta, Evidently, therefore, the court of appeal has rightly proceeded upon the footing that the property which was the subject-matter of dispute would fee governed by the rules of succession applicable to ''Ayantaka'' class of Stridhan property under the Dayabhaga School of Hindu Law. That being so, the sister''s son is a preferential heir to a step-brother (a brother of half blood) although a brother of full blood (uterine) is placed in the hierarchy of succession much above the sister''s son.

There are numerous decisions on the point on interpretation of the various texts of Jimutavahana and, other commentators which have laid down that a brother, who is mentioned at serial No. 1 in the line of succession does not include a half-brother. In the original text instead of the word ''brother'' the term mentioned is ''Sodara'' and wherever a half-brother is deemed to be included into the class of brother, the term ''bhrata'' has been used. The point has been fully discussed and, considered in the case of Debiprasanna Roy Chowdhry v. Harendra Nath Ghosh ILR 1930 Cal 863 wherein it has been laid down that "the word used by Jimutavahana in paragraph 29 is ''Sodara'', and in our opinion it is idle to contend that Jimutavahana intended to include a stepbrother in the expression Sodara. There is a direct Bench decision of this Court also in the case of J. P. Banerjee v. B. Banerjee ILR 28 Pat 75. There is an elaborate discussion of the original text made by both the learned Judges, Ramaswami, J. (as he then was) and Manohar Lall, J. (as he then was) and it was laid down that the rule of succession is that in the first place it goes to the brother of the whole-blood and if there be none to the mother, if she be dead, to the father and on failure of all these, it devolves on the husband In the case of J. P. Baneriee (supra), the contest was between the step-brother of the deceased and her husband. It was decided that the above provision was conclusive and there was no room for the importation of the doctrine of spiritual benefit to such succession. That being the position, a step-brother is no heir to Stridhan to the step-sister, and, hence the former''s son''s claim to such inheritance is not at all tenable. There is no legal infirmity on this score in the judgment and decree of the lower appellate court.

No other point was raised in support of this appeal. The appeal is accordingly dismissed with costs.