Pheku Pande vs Gena Lal Pande and Others

Foster, J.—It is necessary for the purpose of understanding this case to set out in abridged form the genealogy of the family with which we are concerned, (see below)

Dhusar Panre | __________________________________________________________________ | | | Nandan Soman His (His grandson is | (His grand son was Bhekhan Pheku Panre). | Panre who died after 1925 | and before 1920) | Bhairab Dutt | ___________________________________________________________ | | Narayan Dutt Aghori Dutt (His widow Phulbati (Died in 1852 leaving his died in 1915) mother Jagawati and widow | Baohwati who survived Gobinda Dutta Jagawati and died in 1910). (His widow Sheonandan Kuari predeceased Phulabati).

Narain Dutt and Aghori were stepbrothers. The line of Soman Panre, it will be noticed, is extinct. The plaintiff if the agnate grandson of Bhekhan Panre. The defendants are the descendants of Nandan Panre, led by Phyku Panre. The subject-matter of Suit No. 647 consists in certain lands alleged to have been held by Jagawati and Bachawati Kuari jointly by way of maintenance under a grant made on the 17th September 1853 by the surviving brother, Narayan Dutt. In the other suit (No. 652) the same plaintiffs, grandsons of Bhekhan Panre, sue one Hari Kishun Panre for recovery of possession of 8 cattahs alleged to be a part of the ancestral estate of Gobinda Dutt. Hari Kishun appears to be a stranger to the family; he admits that he acquired the property from Bachawati, but denied that it was part of a maintenance grant.

I wish to deal with the two suits separately. Suit No. 647, which was Appeal No. 210 in the lower appellate Court and is Appeal No. 1109 of 1923 in this Court, is the case which will require longer discussion. So I take it first. The plaintiffs allege that on the death of Aghori Panre a dispute arose between Aghori''s surviving stepbrother Narayan Dutt and Aghori''s mother and widow, Jagawati and Bachawati; the former claiming that the family was joint, and the latter that it was separate. This dispute was settled by the ekrarnama or grant dated the 17th September 1853, with the construction of which this case is mainly concerned. The plaintiffs claimed through their ancestor Bhekhan Panre, alleging that on the death of Gobinda Dutt his widow succeeded, and after her death his mother Phulabati succeeded; and, when she died in 1915, the nearest male agnates, Pheku and Bhekhan, inherited the whole estate of Gobinda Dutt as reversionary heirs; and it is claimed that the reversion included the properties which at that time Bachawati was holding in lieu of maintenance under the ekrarnama of 1853. On the other hand, the defendant Pheku Panre who is in possession of the disputed property, claims through Bachawati Kuari, as heir of her stridhan; and alternatively as reversionary heir, succeeding on the death of Bachawati. When he claims through Bachawati as her heir he alleges that the ekrarnama conferred upon Bachawati Kuari an absolute estate as stridhan; when he claims as preferential heir of Narayan Dutt or Gobinda Dutt, he contends that the ekrarnama had the effect of putting Bachawati Kuari into the position of a Hindu widow in a separate estate, and thus the reversion would be delayed till the death of Bachawati Kuari in 1920, at which time admittedly Pheku Panre would be two degrees nearer to the last male holder (or to the grantor Narayan Dutt) than the defendants who are grandsons of Bhekhan Panre. In a word, the plaintiffs claim to have inherited the property in 1915 and the defendants claim to have inherited it in 1920. If the defendant is correct in his contentions he gets the whole of the disputed property; if his claim is wrong, he gets a moiety.

The suit was decreed and the appeal dismissed. The defendants Pheku and others are appealing. The whole question is what estate came to Bachawati under the ekrarnama of 1853. The plaintiffs declare it to have been a maintenance grant made by the karta of the joint family to the mother and widow who survived his stepbrother. The defendant, as I have said, claims that the grant conferred either an absolute or a widow''s estate.

It has been held in the lower appellate Court that Aghori and Narayan Dutt wars "all along" joint in mass and property. It has also been held that not only the lands covered by the ekrarnama which are in Schedule I of the plaint but also the small parcel of land described in Schedule II were granted to Bachawati Kuari for her maintenance. These findings were also arrived at in the trial. Unfortunately the ekrarnama of 1853 is somewhat torn and worn away in important places; the learned District Judge thinks that possibly the land of Schedule II was included is the ekrarnama, but in any case it went with the other lands as part of the grant made by Narayan Dutt.

The first argument taken on behalf of the appellant is that there is a distinction in the ekrarnama batween the properties in dispute and the emoluments consisting mostly of grain and money appropriated to the grantees as annual maintenance. This argument has necessitated a reference to the deed itself. The punctuation in the translation is of course the work of the translator. Now the purport of the document, on reference to the original or to any correct translation, will be found to be as follows: The declarant Narayan Dutt Panre states that his brother Aghori Panra was joint in mess and died a natural death, and the declarant is in the possession of his interest; it is therefore necessary that maintenance of Mts. Jagawati and Bachawati should be provided. The Musummats had entered an objection in the mutation department and the dispute was settled amicably. So the declarant promises annually to give the Musummats Rs. 750 in cash and 790 maunds of grain and also certain parcels of land as well as furniture, cash and grain in existence in a village Barhi, and one-half of a house with a granary in the same village, as wall as three families of servants, 86 head of cattle and two carts. The whole of this grant is obviously governed by the reiterated word maintenance. Then the document proceeds:

It is desirable that the said Musummats should hold possession of the moveabla and immovable properties and continue to realize the case and kinds given by me for their maintenance from ma and after my death from my hairs. If I, the executant, or my hairs raise any objection to the payment thereof, they shall realize the same by instituting a suit in Court or by resorting to such steps as they think possible. Beyond getting the maintenance and holding possession of the moveable and immovable properties referred to above the said Musummats shall have no right of alienation in respect thereof, The said Musummats shall have no claim to or connexion with the properties left by Aghori Panre. During the lifetime of the said Musummats I, the executant, shall not directly or indirectly transfer the properties left by Aghori Panre, by sale conditional sale, usufructuary mortgage, etc., to anyone. If I do so, the same shall be deemed null and void. If one of the Musummats dies, even then the cash and kind and the moveable and the immovable properties fixed for their maintenance which are in their possession shall continue to be in the possession of the survivor.

As I construe this grant, it is a maintenance grant of a type common enough in joint Hindu families. The learned Munsif and the District Judge both took the same view and they pointed out that there were on the record other documents which showed that the ladies had always regarded the properties as their maintenance grant; and the learned Munsif points out that Pheku Panre joined the Musummats in this position in certain suits for arrears of maintenance. I hold therefore that the properties is Schedule I and II of the plaint are proved by oral and documentary evidence to have constituted a maintenance grant to widows in a joint family.

The appellant has however attempted to establish an argument on bare principles of law that the grant must be taken to be either an absolute grant or a grant of an outstanding widow''s estate delaying the reversion to the nearest agnate. As to the question whether the grant constituted an absolute estate, we may refer again to the ekrarnama where it imposes a restraint upon alienation and where it refers to the Musummats as personally entitled to maintenance. The learned vakil for the appellant has referred to Tagore''s translation of the Vivad Chintamani at p. 263, as supporting his contention that in this family, which is governed by the Mithila system of Hindu Law, a maintenance grant must become part of the donee''s stridhan. In the first place, if the grant constituted stridhan of the two Musummats, one would expect that the inheritance to the property of the two ladies being possibly in different channels, there would not have been provision for succession by survivorship. In the second place, looking at the Vivad Chintatmani and the translation put before us (Tagore, p. 263, Setlur, p. 257) and the Vivad Ratnakar, Chapter VIII, I see much that indicates that a childless widow of a separate husband will in Mithila obtain an absolute right in the moveables left by her husband; and in fact we know that that is the Mithila Law: Birajun v. Lachmi (1884) 10 Cal 392. But it is equally certain that this anomaly does not extend to immovable property. As to money and grain delivered for maintenance of coparceners, of course they are prima facie absolute gifts. But the texts are quoted to support the proposition that a grant to a woman of immovable properties made by the karta of the joint family constitutes stridhan. The text quoted is the familiar dictum of Devala, which is translated: "Maintenance, ornaments, sulka and grains are stridhan, that she may enjoy as she pleases." The question is how this text has been interpreted in the Mithila School: the text itself, which, I may observe, appears at first sight to be applicable only to moveables, cannot be detached from the commentaries and taken as the basis of a judgment. We know how this text is interpreted in the Mitakshara, and unless some special authority bearing upon the Mithila Law is shown to justify a departure from the Mitakshara, the appellant''s mere quotation of the text cannot aid his argument. No such exceptional interpretation has been put before us. But in any case the last and final authority in the matter is the document itself. In my opinion its terms indicate quite clearly a mere life estate.

As to the contention that the ekrarnama created a widow''s estate in Bachawati which had the effect of delaying the inheritance, it appears to me to be utterly inconsistent with the law and the known facts. We are asked to conceive a widow''s estate as arising otherwise than by succession to a previous male holder and arising in a family which has been found to be joint. It is difficult to imagine who in such a case as that would be held to be the last male holder when the reversion re-opened. The answer given by the learned vakil for the appellant to these objections is that any arrangement is possible in a family settlement, and that the case of Sreematty Rabutty Dossee v. Sib Chunder Mullick (1856) 6 MIA 1 is an exemplification of this, supporting in its details the appellant''s construction of the facts of this present case. But the alleged similarities in the two cases do not extend to the cardinal facts. There the claim of Zoahra was made as widow, heiress and sole representative of Dwarkanath to her husband''s share and the deed only professed to pay to her in that capacity the amount which was agreed upon by the parties to stand as the value of that share. In the present case we do not know clearly what the ladies claimed in 1853. Certainly what was granted to them was maintenance as the deed shows. From a legal point of view the estate created by the maintenance grant of this case would appear to be one that left a residuary estate still untransferred in the grantors, just as happens in the case of grants of leases and usufructuary mortgages. The reversion in such circumstances would be, not the reversion as the term is used in Hindu Law, but the reversion of English Law such as is vested in a lessor for a term. So the ownership of the properties of Schedules I and II of the plaint remained vested in Narayan Dutt and his heirs. The most apposite authority that I have been able to find is Kachwain v. Sarup Chand (1888) 10 All 462. Relying on that authority, on the terms of the ekrarnama, and on general principles of Hindu Law, I hold that the interest of Mt. Bachawati Kuari was a life estate by way of maintenance and that the property before and after the ekrarnama was vested in Narayan Dutt the ekrarnama having only the effect of a grant of the usufruct for the terms of the joint lives of the two widows. I hold also that the lands of Schedule No. II of the plaint formed part of this grant. In this connexion I may point out that, so far as the pleadings go, no distinction is made as to Bachawati''s title in the properties of these two schedules either in the plaint or in the written statement.

The plaintiff''s appeal from the decision in Suit No. 652 is concluded by findings of fact It has been found that the plaintiffs have failed to prove that Bachawati Kuari got the land from her husband or by virtue of the ekrarnama. That being the case, the plaintiffs are admittedly not the heirs of Bachawati Kuari and cannot succeed to her property. The result is that they have not made out a cause of action.

I would dismiss both the appeals, with costs to the plaintiff-respondents in Suit No. 647 (Appeal No. 1109 of 1923), and costs in Suit No. 652 (Appeal No. 130 of 1924) to the respondent Hari Kishun Panre.

Dawson Miller, C.J.

I agree.