Krishna Panda and Another vs Jhora Chodhurani and Others

Manohar Lall, J.—This is an appeal by defendants 1 and 5 who are transferees from one Narasingho and who are aggrieved by the decision of the learned District Judge by which he allowed the appeal of the plaintiff and passed a decree in her favour that she should recover joint possession to the extent of 8 annas in the property along with the appellants. The facts are these:

One Krishna Chowdhury died leaving a widow, Mt. Haddi, and a mother, Mt. Savitri. He had two sons Narasingho, already mentioned and Beero. The plaintiff is the widow of Beero who died in 192S. On 12th August 1922 by a registered partition deed the two sons of Krishna Chowdhury divided the c property left by their father and in that partition provision was made that Mt. Haddi will femain in possession of Ga properties and Mt. Savitri will remain in possession of the Gha properties.

These two ladies were to enjoy the property during their life-time only, the government revenue and other public demands were to be borne by the two sons. It was also provided that after their death the two sons would share these properties equally. Mt. Haddi is said to have incurred a civil death by renouncing the world in 1928 or 1929 or thereabout. Accordingly the plaintiff prayed that she was entitled to the entire property left by Mt. Haddi because she had renounced schedule Ga properties in her favour. The suit was instituted on 1st October 1937 to recover possession of the entire properties which were then in possession of the transferees from defendant 4, i.e., Narasingho. It is unnecessary to state the defence beyond pointing out that the defendants challenged that defendant 3, Mt. Haddi, was civilly dead and also that the plaintiff had no right to claim any share in that property because upon the terms of the partition deed it descended to defendant 4 as the heir of his father then living. The suit was contested by defendants 1 and 5 only.

The learned Munsif did not accept the case of the plaintiff that Mt. Haddi was civilly dead or that under the Hindu law Mt. Haddi had any power to give the property to anybody other than the next reversioner. Accordingly he dismissed the suit.

Against this decision there was an appeal to the learned District Judge who disagreed with the learned Munsif and held that Mt. Haddi was civilly dead and secondly that upon the terms of the partition deed the properties which were in possession of Mt. Haddi should be divided equally and the plaintiff should get eight annas share in that property. For these reasons he allowed the appeal and as defendant 4 did not claim 8 annas share of the properties but had chosen to remain absent during the trial he gave the plaintiff a decree for joint possession of 8 annas share along with defendants 1 and Section Hence the appeal to this Court.

It was argued in the first instance that there is no legal evidence upon the record to justify the conclusion of the learned Judge that Mt. Haddi was civilly dead. I have looked into the evidence which was handed over to me and I am unable to say that there was no evidence in support of the findings of the learned Judge. It was his function as a Court of fact to accept or not to accept that evidence even if it was uncorroborated. Accordingly I am unable to interfere with the finding that defendant 3 was civilly dead in 1928 or 1929.

The question then arises whether upon the civil death of Mt. Haddi the properties devolved on defendant 4 only or on defendant 4 and the plaintiff in equal shares. In a recent case before their Lordships of the Judicial Committee it has been held that a Hindu mother upon partition becomes the owner of the properties, but before that date and before the actual partition has taken place she has no pre-existing right in the estate except a right of maintenance (see AIR 1936 20 (Privy Council) . It was argued on behalf of the respondents that the partition deed does not show when Mt. Haddi was placed in possession of this property. But in view of the decision which I have just referred it must be held that Mt. Haddi had a right of maintenance which was crystallized into her right to possess schedule Ga properties when actual partition was effected between her sons. In Debi Mangal Prasad Singh v. Mahadeo Prasad Singh 34 All. 234, their Lordships of the Judicial Committee laid down that immovable property obtained by a Hindu widow on partition of, the joint family property is under the Mitakshara law not her stridhan in such sense that on her death it passes to her stridhan heirs, but reverts on her death to the next heirs of her husband in the absence of express agreement amongst the cosharers to the contrary. The question, therefore, is whether there was an express agreement among the cosharers, namely among the two brothers, to the contrary. That depends upon the construction of the deed of partition. The crucial sentence in that deed is that after the death of Mt. Haddi the properties will be shared amongst the two brothers equally. It is argued on behalf of the respondents that the critical date to consider this question was the date of partition and not the date of the death of Mt. Haddi. He argues that on that date the parties agreed that after the death of Mt. Haddi the properties will go to the two branches separately. On the other hand it is argued on behalf of the appellants before me that on the death of Mt. Haddi, or on her civil death as in this case, the property would go to the then heir of her husband. Having considered the question I am of opinion that the intention of the parties was that on the death of Mt. Haddi the property should go half and half in the two families, that is to say, one half would go to the branch of defendant 4 and the other half to the branch of the plaintiff''s husband. For these reasons the decision of the learned Judge is correct and must be affirmed. The appeal fails and is dismissed with costs.