Sheonandan Prosad and Another vs Damodar Prosad and Others

Das, J.—I think this appeal must succeed. The learned Judge in the Court below took the view that the rent decree wag the property of Phul Koer and descended to the heirs of Phul Koer and not to the heirs of Kali Prosad. It is necessary to remember that Phul Koer succeeded to the estate as the heir of her father Kali Prosad. The estate in her hands was the estate of a Hindu daughter and it is not disputed that the estate as such did revert on her death to the heirs of Kali Prosad and not to her heirs. The argument which found favour with the learned Judge in the Court below is that the decree having been obtained by Phul Koer it must be regarded as her own personal property. With this conclusion I am unable to agree. It was laid down in the leading case of Isree Dutt v. Hansbutti Kuarin (1884) 10 Cal. 324 that if the widow has made no attempt to dispose of the savings from her husband''s estate they must follow the estate from which they arose. It is not disputed that the income of a limited estate held either by a widow or a daughter is at the disposal of the limited owner; but the question arises what happens to such income if the limited owner has made no attempt to dispose of it in her lifetime. On this question the case to which I have referred is conclusive. It was held by the Judicial Committee that if the limited owner has made no attempt to dispose of the income in her lifetime such income must follow the estate from which it arose, Difficulties arise only in cases where the income is held in suspense in the widow''s hands, for it is undisputed that it is open to the limited owner to hold the income in suspense with intent to appropriate it for her personal use later on. The test to be applied to oases of this description is, as was pointed out by Mr. Justice Muktaarji in the case of Bhakwati Kuer v. Sahudra Kuer 16 C.W.N. 834 to determine from the surrounding circumstances the intention of the widow, namely, whether she intended to treat the income as part and parcel of the estate of her husband or whether she treated it as temporary saving liable to be applied by her subsequently for her own purposes. But this question does not arise in this case. It is nobody''s case that the rent decree was held by Phul Koer in suspense with intent to appropriate the proceeds thereof for her personal use later on. Phul Koer died not having in any way disposed of that decree. It accordingly vested in the reversioners of her father.

I would allow the appeal, set aside the order of the Court below and restore the order of the Court of first instance. It follows that execution must proceed. The appellant is entitled to his costs throughout. Hearing fee in this Court will be assessed at two gold raohurs.

Ross, J.

I agree.