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2012 Supreme(Cal) 199
IN THE HIGH COURT OF CALCUTTA
Ashim Kumar Banerjee and Shukla Kabir (Sinha), JJ.
Sri Malay Kumar Dey
Versus
Sri Durga Narayan Sen & Ors.
F.A. No. 212 of 2008
Decided on : March 14, 2012
For the Appellant: Mr. Bidyut Kumar Banerjee, Mr. Maniklal Poddar.
For the Respondent No.3: Mr. Souradipta Banerjee, Mr. Purbangshu Chandra Mitra.
For the Respondent No. 4 & 5: Mr. Sudhish Das Gupta, Mr. Shibasish Ghosh, Mr. Goutam Das, Ms. Debjani Bandyapadhyay
The interpretation of Section 14(1) and 14(2) of the Hindu Succession Act, 1956, in the context of property acquired by a female Hindu with a restrictive covenant.
Headnote:
HINDU SUCCESSION ACT, 1956 - SECTION 14(1) AND 14(2) - PROPERTY PURCHASED BY FEMALE HINDU - RIGHT TO PROPERTY - RESTRICTIVE COVENANT - INTERPRETATION OF DOCUMENTS - COURT ANALYSIS AND CONCLUSION - RATIO DECIDENDI - FINAL DECISION
Fact of the Case:
A dispute arose over the ownership of a property purchased by Radharani, the widow of Sarat Sashi Mallick, in 1931. Radharani and Christabel, Mallick's other widow, had entered into an agreement in 1929, where Radharani received Rs. 15,000 with a restrictive covenant that she and her daughter Rasheswari would only have the usufruct of the sum during their lifetime. The balance sum of Rs. 5,037-6-9 was given to Radharani without any restrictions. In 1931, Radharani purchased a property in a Court auction and declared herself as the "full owner and proprietor" of the premises. After Radharani's death in 1979, her sole heir Rasheswari inherited the property. Rasheswari died in 1979, leaving behind her children Durga, Satya, Tara, Mira, and Gouri. Durga and Satya sold the property to Nirmal Chandra Bhattacharya and Smt. Lili Bhattacharya in 1993. The plaintiff, one of the granddaughters of Rasheswari, filed a suit in 1997 seeking a declaration that the property was a joint property of Rasheswari's estate and liable to partition, and that the Deed of Conveyance executed in 1993 was null and void.
Finding of the Court:
The trial court dismissed the suit, holding that the plaintiff had failed to prove his right, title, and interest in respect of ¼th share in the property. The court relied on the 1929 and 1931 documents and concluded that the issue could be resolved under Section 14(2) of the Hindu Succession Act, not Section 14(1) as contended by the plaintiff.
Issues: 1. Whether the property purchased by Radharani was acquired using the sum of Rs. 15,000 received under the 1929 agreement, thereby subjecting it to the restrictive covenant. 2. Interpretation of Section 14(1) and 14(2) of the Hindu Succession Act, 1956, in the context of property acquired by a female Hindu with a restrictive covenant.
Ratio Decidendi: 1. The court held that the plaintiff failed to discharge the onus of proving that the property was purchased by Radharani using the restricted sum of Rs. 15,000. The court found no evidence establishing a nexus between the money and the property. 2. The court interpreted Section 14(1) and 14(2) of the Hindu Succession Act, 1956, and held that the restrictive covenant imposed by the 1929 agreement would apply to the property if it was purchased using the restricted sum of Rs. 15,000. However, in the absence of such proof, the property would not be subject to the restriction and would be governed by Section 14(1), giving Radharani absolute ownership.
Final Decision: The court allowed the appeal in part. It modified the judgment and decree of the trial court and declared that the plaintiff was entitled to a ¼th share in the property, with the remaining ¼th share belonging to the defendant no. 3 and the rest half to the respondent nos. 4 and 5. The court held that the plaintiff's suit should have succeeded in part, declaring his share in the subject property to the extent of ¼th, leaving another ¼th share for the defendant no. 3 and the rest half for the respondent nos. 4 and 5.
ASHIM KUMAR BANERJEE, J:
BACKDROP
1. One Mr. Sarat Sashi Mallick was a Barrister by profession. He had a roaring practice both at Calcutta and Patna. He had two wives, Smt. Radharani Dasi residing at Calcutta and Mrs. Jeawlta Christabel Mallick residing at Patna. Radharani had only one daughter, namely, Rasheswari Dasi. Christabel had more than one child. Sarat Sashi Mallick made his fortune. He had properties at both places having the respective control of his two branches headed by his respective wives. He had liquid cash invested in banks and financial institutions. The dispute arose after the death of Sarat Sashi Mallick. The parties however resolved their dispute. The settlement was recorded in writing through an Indenture dated April 20, 1929. By the said Indenture both the wives recognized each other to be the widow of the deceased. Christabel allowed withdrawal of money from banks by Radharani. She also paid Rs.6500/- in cash to Radharani. Radharani got Rs.20037-6-9. It was agreed, Rs.15000/- would be invested in an appropriate account, the interest of which would be used by Radharani and Rasheswari during their life time. After their demise, the male children of Rasheswari would get it in equal share absolutely. The Indenture however gave an absolute right to the balance sum of Rs.5037-6-9/- to Radharani Devi with liberty to spend the same as per her likings and without any objection, if any, raised by Rasheswari or her male children. In exchange, Patna properties were retained by Christabel and her children. We also find another document dated October 2, 1931 being a Declaration made by Radharani to the effect that she had purchased a house at 9, Panchanantala Lane, Calcutta in a Court auction on June 5, 1931. By the said Declaration, Radharani recorded that she was the “full owner and proprietor” of the premises in question and one Janoki Nath Sen did not have any right over the same. In 1979, Radharani died leaving her surviving her sole heir Rasheswari. Rasheswari died on May 12, 1979 leaving her surviving Durga Narayan Sen and Satya Narayan Sen (hereinafter referred to as Sens), Tara Dey, Smt. Mira Dey and Gouri Laha being her children. By a Deed of Indenture dated August 10, 1993 Durga and Satya being the respondent no.1 and 2 duly conveyed the property in favour of Shri Nirmal Chandra Bhattacharya and Smt. Lili Bhattacharya (hereinafter referred to Bhattacharyas) being the respondent no.4 and 5 who were already in part possession of the house as tenant. The respondent no.6 to 10 were the other tenants.
LITIGATION
2. Bhattacharjees filed ejectment suit as against the tenants being the respondent no.6 to 10 and ultimately obtained decree of eviction against them that was affirmed up to the Apex Court level. During the pendency of the said proceeding the appellant being one of the grand children (Daughters’ branch) of Rasheswari filed a suit being Title Suit no.2680 of 1997 inter alia praying for a Declaration that the scheduled property being 9, Panchanantala Lane, Calcutta was a joint property of the estate of Rasheswari and thus was liable to partition. The Deed of Conveyance executed on August 13, 1993 was liable to be declared null and void. He made the other heirs of the daughter brunch as proforma defendants being respondent no.11, 12 and 13 above named. He also made the tenants as parties including both Durga Narayan Sen and Satya Narayan Sen as also Bhattacharjees.
3. Despite service of summons Sens did not appear. Bhattacharyas appeared and contested the suit whereas the other tenants did not appear and the proforma defendants supported the plaintiff. Bhattarcharyas, in their written statement, disclosed the incident of 1929 and 1931.
IMPUGNED JUDGMENT
4. The learned Judge of the Court below vide judgment and order dated March 31, 2007 appearing at Page 141-184 of the paper book dismissed the suit. The learned Judge dismissed the said suit on contest against the contesting defendants and ex-parte
