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HIGH COURT OF CALCUTTA
R. P. MOOKERJEE, SARMA SARKAR
ASHALATA MITTER - Appellant
Versus
AMIYA KUMAR DEY - Respondent
A. F. O. D. 117 Of 1950
Decided On : DECEMBER 19, 1956
Hindu Law - Widow's estate - Surrender - Deed of relinquishment and assignment - Construction - Whether a valid surrender - Whether a partial surrender - Whether a bona fide surrender - Whether a device to divide the estate - Agreement relating to the Baranagar property - Effect.
Fact of the Case:
Foolkumari, the widow of Jadav Krishna Singha, executed a deed of relinquishment and assignment in favor of Ajoy, Achal, and Asoke, the daughter's sons of Foolkumari, in consideration of a lump sum and a monthly allowance. The deed included all the properties left by Jadav, except for the Baranagar property, which was specifically excluded from the operation of the document. The plaintiffs, the widow and two daughters of Achal, and Prafulla Kumar Ray, Executor to the estate of Achal, instituted a suit for declaration of their title to one-third share of the Baranagar property and for recovery of possession thereof on partition. The defendant No. 1, Amiya Kumar Dey, was described as a transferee of the property in suit from Ajoy and Asoke. The heirs of Ajoy were defendants Nos. 2 to 8 and Asoke was defendant No. 9. The learned Subordinate Judge found that the suit having been instituted within twelve years of the death of Foolkumari, no question of limitation or adverse possession arose. On the question of the plaintiffs' title, he came to the conclusion, after construing the document of 30th March 1909, that though it was a deed of surrender, the property in suit was expressly excluded from its operation and that Foolkumari retained her right, title, and interest as a limited owner in the said property. He accordingly held that Achal did not inherit any interest in this property and that the plaintiffs could not claim any title thereto and dismissed the suit with costs.
Finding of the Court:
The court held that the document in question was a valid deed of surrender of the interest of Foolkumari in respect of her husband's estate, and that it was not a partial surrender or a device to divide the estate. The court also held that the agreement relating to the Baranagar property was a bona fide settlement of a disputed claim of title to this property by which all the parties benefited.
Issues: 1. Whether the document in question was a valid deed of surrender of the interest of Foolkumari in respect of her husband's estate? 2. Whether the document was a partial surrender or a device to divide the estate? 3. Whether the agreement relating to the Baranagar property was a bona fide settlement of a disputed claim of title to this property by which all the parties benefited?
Ratio Decidendi: 1. The court held that the document in question was a valid deed of surrender of the interest of Foolkumari in respect of her husband's estate, because: a. The document was executed by Foolkumari in consideration of a lump sum and a monthly allowance, which was a reasonable provision for maintenance. b. The document was executed with the consent of Prabhabati, the daughter of Jadav, who was the next reversioner. c. The document was executed in pursuance of an agreement between Foolkumari and Prabhabati, which was embodied in the decree passed in a suit filed by Foolkumari against Prabhabati. d. The document was prepared by Prabhabati in accordance with the terms of the decree passed in the suit. e. The document was registered. 2. The court held that the document was not a partial surrender or a device to divide the estate, because: a. The document purported to be a deed of double surrender, as in the cases of Janaki Nath v. Jyotish Chandra and Chinna-swami Pillai v. Appaswami Pillai. b. The exclusion of the Baranagar property from the schedule to the document was due to a bona fide mistake on the part of Fool Coomari in the sense that she did not know of the existence of this property or believed that she had lost interest therein. c. The agreement relating to the Baranagar property was a fair and reasonable settlement of a disputed and doubtful question of title to this property. 3. The court held that the agreement relating to the Baranagar property was a bona fide settlement of a disputed claim of title to this property by which all the parties benefited, because: a. Fool Coomari bona fide believed that it was her own property and not a part of her husband's estate when she agreed to relinquish her interest in her husband's estate. b. That claim was not disputed by her daughter and daughter's sons at the time and, on the other hand, they acquiesced in her claim by subscribing to the agreement embadied therein by which she on her part consented to limit her claim to the property for her life. c. The question whether this property continued to be a part of her husband's estate or had become her personal property in consequence of the lease obtained by her had never been in issue in any of the previous litigations.
Final Decision: The appeal was dismissed with costs. No order was necessary on the cross-objection.
( 1 ) AS I agree with the conclusions as indicated in the judgment to be just delivered by my learned brother, I do not think it necessary to discuss the various questions raised. There is, however, one matter to which I would advert.
( 2 ) ONE of the most important questions raised in this appeal depends upon the interpretation of a document which is marked as Ex. 1 in this case. This document was executed by the Registrar of this Court on behalf of certain parties under the orders passed by the Court in Original Suit No. 305 of 1907 in the Original Side of this Court. During the hearing of the present appeal before us, it was clear that the records of that suit should be looked into. We ourselves felt the difficulty and on the 25th July 1956, we passed the following order:-"both the parties agree that the records in Original Suit No. 345 of 1907 should be brought up. The order passed by this Court in that suit on the 9th March 1909, cannot be understood or properly explained without the records being looked into. We direct the Registrar, Original Side, to send to this Court the original records in Suit No. 345 of 1907 (Sm. Fool Commaree Dasi v. Sm. Prabhabati Dasi ). "
( 3 ) ON the 27th July 1956, two bundles of documents were received from the Registrar, Original Side, from the records of Suit No. 305 of 1907. The papers in the bundles were most of them unimportant petitions, some of them before the 30th March 1909, and some subsequent thereto. The original pleadings and even the decree and certain other original records were not sent up. The office was directed to make a further search. Such search proved in-fructuous, and on the 1st August 1956, an application was filed on behalf of the respondent for receiving additional evidence under Order 41, Rule 27 of the Code of Civil Procedure. It was prayed that the certified copies of two deeds which had been executed on the 1st April 1909, and the 22nd July 1909, might be admitted in evidence in this Court. These transactions, it is stated, had been referred to in Ex. 3 of this case, viz. , the amicable partition between Pravabati and Mitter Brothers on the 25th January 1915.
( 4 ) FURTHER hearing of the appeal had been adjourned pending more intensive search in the Records in the Original Side of this Court. That also has proved infructuous.
( 5 ) THE prayer made by the respondent for the reception of additional evidence has been resisted on behalf of the appellant. Order 1 41, Rule 27 of the Code of Civil Procedure enumerates the circumstances under which additional evidence may be received. It is not the intention of the Legislature to allow admission of a document as additional evidence at the appellate stage which by itself is no proof of the circumstances under which the document, dated the 30th March 1909, had been executed. There are some statements contained in these subsequent documents leading at best to an inference as to what had happened previously. Under such circumstances the documents cannot be received in evidence in this Court. The existence of these documents were known to the party also. The reception of such documents at this stage would have led to a formal proof of the documents themselves and an opportunity would have to be given to the appellant to adduce evidence in rebuttal. That is neither possible, nor desirable.
( 6 ) WE cannot leave this case without placing on record the unfortunate circumstances under which the records were found to be missing from the Original Side of this Court. The manner in which original documents including pleadings, decrees, etc. , are kept in bundles without any full list of particulars of the contents thereof is wholly unsatisfactory. The manner in which such bundles are taken out from the records for examination or inspection and put back again without full and complete examination or proper security makes it possible for the loss of important original records being not brought to the notice o
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