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HIGH COURT OF CALCUTTA
R. P. Mookerjee, Lahiri
BIRENDRA NATH BANERJEE - Appellant
Versus
SHIBARAM ADITYA - Respondent
A. F. O. D. 327 Of 1944
Decided On : SEPTEMBER 3, 1951
HINDU LAW - ALIENATION BY WIDOW - LEGAL NECESSITY - MORTGAGE BY WIDOW - SUIT BY REVERSIONERS - LIMITATION - ARTICLE 125, LIMITATION ACT.
Fact of the Case:
The plaintiffs, as reversionary heirs of their maternal grandfather, filed a suit for a declaration that the auction sale held at the instance of defendant No. 1 against defendant No. 8 (their mother) in respect of one of the properties and certain other alienations made by defendant No. 8 in favour of defendants 2 to 7 in respect of other properties are not binding on them. The defendants pleaded limitation, estoppel, waiver, and that Avistakarini had an absolute interest in the estate of her father, because after the decision of the High Court in Appeal from Original Decree No. 175/1912 there was a compromise between Avistakarini and Rakhal Dasi as a result of which Rakhal Dasi withdrew her objections to the Probate case and Avistakarini got an absolute title to the estate of her father; that thereafter Avistakarini continued in possession as an absolute owner adversely to Rakhal Dasi and her title to the estate was perfected by adverse possession.
Finding of the Court:
The court held that the compromise arrived at between Rakhaldasi and Avistakarini binds the reversioners but set aside the decision of the Court below that the compromise was approved by the High Court and that Avistakarini acquired an absolute right by the non-recalling of the grant and that Avistakarini acquired an absolute right by adverse possession. The court further held that the mortgage in favour of defendant No. 1 was barred by limitation but was justified by legal necessity, that the mortgage in favour of defendant No. 2 was also justified by legal necessity and that the plaintiffs were bound by the said mortgage bond, having consented to and confirmed the same, that the mortgage bond in favour of defendants 3 and 4 was not for legal necessity, that the plaintiffs have no cause of action in respect of the lease in favour of defendant No. 5 and that the permanent lease in favour of defendants Nos. 6 and 7 was not justified by legal necessity.
Issues: 1. Whether the compromise between Rakhal Dasi and Avistakarini is binding on the reversioners? 2. Whether the mortgage in favour of defendant No. 1 was barred by limitation and justified by legal necessity? 3. Whether the mortgage in favour of defendant No. 2 was justified by legal necessity and binding on the plaintiffs? 4. Whether the mortgage bond in favour of defendants 3 and 4 was for legal necessity? 5. Whether the plaintiffs have a cause of action in respect of the lease in favour of defendant No. 5? 6. Whether the permanent lease in favour of defendants Nos. 6 and 7 was justified by legal necessity?
Ratio Decidendi: 1. The compromise between Rakhal Dasi and Avistakarini is binding on the reversioners as it was a bona fide family arrangement. 2. The mortgage in favour of defendant No. 1 was barred by limitation but was justified by legal necessity as the money was borrowed to discharge a prior mortgage which was for legal necessity. 3. The mortgage in favour of defendant No. 2 was also justified by legal necessity as the bulk of the money was applied to discharge the prior mortgage which was for legal necessity and the plaintiffs were bound by the said mortgage bond, having consented to and confirmed the same. 4. The mortgage bond in favour of defendants 3 and 4 was not for legal necessity. 5. The plaintiffs have no cause of action in respect of the lease in favour of defendant No. 5 as the lease has expired by efflux of time during the lifetime of Avistakarini. 6. The permanent lease in favour of defendants Nos. 6 and 7 was not justified by legal necessity.
Final Decision: The plaintiffs' suit was dismissed against all the defendants and the appeal was dismissed with costs.
( 1 ) THIS appeal by the plaintiffs arises out of a suit for a declaration that the plaintiffs are the reversionary heirs of their maternal grandfather, Surendra Nath Mookerjee (deceased) and that their mother Avista Karini Debi (Defendant No. 8) had" only the limited interest of a Hindu daughter in the properties left by Surendra Nath Mookerjee arid described in Schedule Ka of the plaint and as such the auction sale held at the instance ol defendant No. 1 against defendant No. 8 in respect of one of the properties and certain other alienations made by defendant No. 8 in favour of defendants 2 to 7 in respect of other properties are not binding on the plaintiffs.
( 2 ) THE plaintiffs' case is that their maternal grandfather, Surendra Nath Mookerjee died on the 23rd January 1910 (corresponding to the 12th Magh 1316) leaving a widow named Rakhal Dasi and a daughter named Avistakarini by another wife. Avistakarini had five sons named Ramendra, Khagendra, Birendrat Nirendra and Debendra. Of these five sons the suit was originally instituted by the last four and Ramendra was impleaded as pro forma defendant No. 9. Subsequently Rameiidra was transposed to the category of the plaintiffs. Shortly after the death of Surendra Nath, Avistakarini (defendant No. 8) applied for letters of administration with a copy of the Will alleged to have been executed by Surendra. Rakhal Dasi filed objections to the grant; but the Additional District Judge who tried the suit made an order for the issue of the Letters of Administration. Against that order Rakhal Dasi filed an appeal to the High Court which was registered as Appeal from Original Decree No. 175/19. 12. The High Court allowed the appeal and set aside the order for the issue of Letters of Administration. Against the decision of the High Court Avistakarini filed an application for leave to appeal to Privy Council which was registered as Privy Council Appeal No. 145/1914. This, appeal to Privy Council was not proceeded with and eventually allowed to be withdrawn on 14-12-1915. The plaintiffs claim that as a result of the dismissal of Avistakarini's application for Letters of Administration and the withdrawal of the appeal to the Privy Council it was established that Surendra Nath Mookerjee had died intestate and Rakhal Dasi, the widow and Avistakarini, the daughter, had only life interests in the properties left by Surendra Nath Mookerjee. Rakhaldasi, the widow died in Falgoon, 1334, corresponding to February-March 1928. Although Avistakarini had only a life interest in the properties left by her father she entered into various collusive transactions with the different defendants on the footing that she was the absolute owner, without any justifying legal necessity. These transactions, according to the plaintiffs are not binding on the plaintiffs as the reversionary heirs of Surendra Nath. The transactions that impeached by the plaintiffs are: (a) a mortgage in favour of defendant No. 1 (Doman Aditya) which was followed by a decree and an auction sale (b) a mortgage in favour of Defendant No. 2 (Nripendra Nath Bose) (c) a mortgage in favour of Defendants Nos. 3 and 4 (Sailendra Krishna and Jiban Krishna Kundu Choudhury) (d) A lease for twenty years in favour of Defendant No. 5 (Nayan Chandra Datta) (e) a' permanent lease in favour of Defendants Nos. 6 and 7 (Bachulal Saha and Jagannath Saha ). The plaintiffs prayed that the auction-purchase by defendant No. 1 and the mortgages and leases executed by defendant No. 8 (Avistakarini) in favour of defendants 2 to 7 are not binding against the plaintiffs and the reversionary rights of the plaintiffs are not in any way affected thereby.
( 3 ) THE suit was contested by five sets of written statements. The defendant No. 1 died after filing his written statement and his heirs defendants Nos. l (a) and l (b) adopted the written statement filed by him. The defence of defendants 1, 2, 3, 4, 6 and 7 is that the suit is barred by limitation, e
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