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HIGH COURT OF CALCUTTA
A.K. SINHA, K.J. SENGUPTA, JJ.
Sasanka Bhowmick - Appellant
Versus
Amiya Bhowmick – Respondent
Decided On : Sep 25, 1973
PARTITION SUIT - HINDU SUCCESSION ACT, 1956 - HINDU WOMEN'S RIGHT TO PROPERTY ACT, 1937 - SECTION 14(1) - SECTION 24 - SECTION 3(1) - SECTION 2 - WEST BENGAL NON-AGRICULTURAL TENANCY ACT, 1949 - BENGAL TENANCY ACT - PARTITION ACT, SECTION 4 - AGRICULTURAL LANDS - WIDOW'S RIGHT TO INHERIT - REMARRIAGE - ABSOLUTE OWNER - SELF-ACQUIRED PROPERTIES - BENAMI TRANSACTION - ONUS OF PROOF - JOINT FAMILY PROPERTY - RESULTING TRUST.
Fact of the Case:
The plaintiff, Amiya Bhowmick, filed a suit for partition of joint family properties against her son, Sasanka Bhowmick, and her daughter-in-law, Maitrayee Debi. The plaintiff claimed that she and Sasanka were entitled to an equal 1/3rd share in the disputed properties, while Maitrayee Debi was entitled to a separate equal and equitable allotment for her 1/3rd share. The suit was contested by Sasanka and Maitrayee Debi. Sasanka claimed that certain properties were his self-acquired properties, while Maitrayee Debi claimed that she was entitled to inherit the disputed properties as the widow of Sasanka's deceased brother, Pronob Bhowmick. The trial court found that Maitrayee Debi's marriage with Pronob was valid and that she was entitled to inherit 1/3rd share of all the disputed properties. The trial court also held that both Sasanka and Maitrayee Debi would be entitled to 1/3rd share in the suit properties. Sasanka appealed against the trial court's decision.
Finding of the Court:
The High Court held that Maitrayee Debi was entitled to inherit 1/3rd share of the disputed properties as the widow of Pronob Bhowmick, as her marriage with Pronob was valid. The High Court also held that Maitrayee Debi became an absolute owner of the properties before her remarriage and therefore she could not forfeit her right even though she married for the second time. The High Court further held that the immovable properties, except for one item, were not agricultural lands and therefore Maitrayee Debi was entitled to inherit them. The High Court also held that the properties claimed by Sasanka as self-acquired properties were not joint family properties and therefore he was entitled to them. The High Court modified the trial court's decree accordingly.
Issues: 1. Whether Maitrayee Debi was entitled to inherit the disputed properties as the widow of Pronob Bhowmick? 2. Whether Maitrayee Debi forfeited her right to the properties in suit by remarrying? 3. Whether the immovable properties were agricultural lands? 4. Whether the properties claimed by Sasanka as self-acquired properties were joint family properties?
Ratio Decidendi: 1. Under Section 14(1) of the Hindu Succession Act, 1956, Maitrayee Debi became an absolute owner of the properties before her remarriage and therefore she could not forfeit her right even though she married for the second time. 2. The immovable properties, except for one item, were not agricultural lands and therefore Maitrayee Debi was entitled to inherit them under the Hindu Women's Right to Property Act, 1937. 3. The properties claimed by Sasanka as self-acquired properties were not joint family properties and therefore he was entitled to them. The onus of proof lay on the respondents to prove that the properties were joint family properties, which they failed to discharge.
Final Decision: The High Court allowed the appeal in part and modified the trial court's decree. The entire open land except uniform area of 5 Cottahs of such land around "Maya Bhawan" with a 10 ft. wide passage connecting the public road in item (i) and except lands around the go down and structures maintaining a uniform width of 10 ft. on all sides and also a 10 ft passage connecting all the structures and go down's with public road of Item (iv) of Schedule "f" and Items 1, 2 and 4 of Schedule "g" shall be excluded from partition and further, the appellant and the respondent No. 1 or either of them shall be at liberty to apply for buying up the share of the respondent No. 2 of the dwelling house "Maya Bhawan" in accordance with the provisions of Section 4 of the partition Act before a Commissioner is appointed to effect partition of this property by metes and bounds. In all other respects, the preliminary decree passed by the trial Court shall stand.
1. This is a defendant's (No. 1) appeal against a preliminary decree passed in a suit for partition of joint family properties. Before we enter into the question raised, we would indicate brief outline of the circumstances under which the present appeal arises.
2. One Raimohan Bhowmick, since deceased, who was a Hindu governed. by the Dayabhaga School of Hindu law died leaving him surviving the plaintiff Amiya Bhowmick whom he married for the second time after the death of his first wife, one son Sasanka bhowmick, defendant No. 1 and one maitrayee Debi, then a widow of his another son P. K. Bhowmick, since deceased. He also left considerable movable and immovable properties the widow Amiya Bhowmick instituted a suit for partition on or about 20th December, 1957 in respect of the properties both movable and immovable left by her husband against Sasankar and Maitrayee Debi. Her case briefly is that she along with the defendant no. 1 already obtained a successor certificate in respect of debts and securities mentioned in Schedule 'c' or the plaint but owing to the troubles created by defendant No. 1 it has become impossible for her to pay other debts or obtain mutation of names and there have been difficulties in the way of peaceful enjoyment and possession of joint residential house known as Maya Bhavan at Jadavpur and other immovable properties described in Schedule 'd', 'e' and 'f'. In spite of demand for an amicable partition, it is alleged that the defendant no. 1 did not agree in collusion with his father-in-law one J. C. Nath to such amicable partition. The plaintiff and each of the other two defendants are entitled to an equal l/3rd share in respect of the disputed properties and that is how a declaration of shares and partition of the properties ought to be effected. By a subsequent amendment of the plaint another Schedule 'g' was incorporated consisting of certain annuities, shares and immovable properties.
The suit has been contested by the defendant No. 1 who filed one written statement and three additional written statements. Summary of pleadings omitted.
3. THE suit has also been contested by the defendant No. 2, the widow of the pre-deceased son of R. M. Bhowmick. She has substantially supported the case of the plaintiff and demanded partition of all moveable and immovable properties left by Raimohan Bhowmick and she claimed a separate equal and equitable allotment for her l/3rd share of such properties.
4. UPON these pleadings, quite a large number of issues were framed and besides the plaintiff who examined her on commission, as many as 9 witnesses were examined on her behalf of the defendants besides the witness J. C. Nath, who was also examined on commission, 7 witnesses were examined and substantial number of documents were adduced in evidence on either side.
The learned trial Court on evidence on the issue as to the right of defendant No. 2 to inherit the disputed properties found her marriage with her deceased husband Pronob as valid and that she was entitled to inherit l/3rd share of all the disputed properties. On the question whether by re-marriage defendant No. 2 forfeited her right to the properties in suit, the learned trial Court took the view that by virtue of the relevant provisions of Hindu succession Act, 1956, defendant No. 2 became an absolute owner of the properties before her re-marriage and therefore she could not forfeit her right even though she married for the second time on 21st September, 1961 and accordingly, the learned trial court held that both defendant No. 1 and defendant No. 2 would be entitled to l/3rd share in the suit properties.
5. As to the nature of properties. the learned trial Court found that the immovable properties, the residential house known as Maya Bhavan including all connected lands, and other lands and buildings were not agricultural lands except only one item No. 5 under schedule 'g' of the plaint.
6. THE claim of money collected on the strength of Succes
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