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1940 Supreme(Cal) 61
CALCUTTA HIGH COURT
Nasim Ali, J., B.K. Mukherjea, J.
Raja Janaki Nath Roy & Ors. - Appellant
Versus
Jyotish Chandra Acharya Chowdhury & Ors. - Respondent
Decided On : 21-08-1940
Headnote:
Surrender - Hindu Law - Sections 42, 8, 120, 125 - A Hindu widow can surrender her estate to a reversioner of the second degree with the consent of the immediate female reversioners, but the consent must be bona fide and not procured by payment of a large sum of money. The widow's surrender must be a bona fide act of self-effacement and not a mere device to divide the estate between the reversioner and her own nominees.
Fact of the Case:
A Hindu widow, with the consent of her two daughters, surrendered her estate to her daughter's son, the reversioner of the second degree. The surrender included provisions for the widow's maintenance, payment of debts, and a large sum of money for the widow's brothers. The plaintiff, a son of the daughter and a younger brother of the reversioner, sued for a declaration that the surrender was invalid and did not affect his reversionary rights.
Finding of the Court:
The court found that the consent of the daughters was not bona fide and was procured by payment of a large sum of money. The court also found that the widow's surrender was not a bona fide act of self-effacement but a device to divide the estate between the reversioner and her own nominees. The court held that the surrender was invalid and did not affect the plaintiff's reversionary rights.
Issues: 1. Whether the surrender by the widow was a valid and bona fide act of self-effacement, or a mere device to divide the estate between the reversioner and her own nominees.2. Whether the plaintiff's suit for a declaratory relief was barred by limitation.
Ratio Decidendi: The court held that a Hindu widow can surrender her estate to a reversioner of the second degree with the consent of the immediate female reversioners, but the consent must be bona fide and not procured by payment of a large sum of money. The court also held that the widow's surrender must be a bona fide act of self-effacement and not a mere device to divide the estate between the reversioner and her own nominees.
Final Decision: The appeal was dismissed with costs to the plaintiff-respondent.
Legal Category Hierarchy
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hindu law
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succession and inheritance
- doctrine of surrender and relinquishment
- limited interest of widow
- reversionary interest
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succession and inheritance
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limitation
- prescription and limitation periods
- specific relief
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evidence
- witness testimony
- documentary evidence
JUDGMENT
Nasim Ali, J. - This appeal arises out of a declaratory suit by a Hindu reversioner. The property in dispute belonged to Baboo Mohini Mohan Roy who was vakil of this Court. The following genealogy will show the relationship of the plaintiff to the defendants other than defendants 5, 6 and 7.
Gour Sunder Roy Mohini Mohan Roy, = Tripura Sundari | died Sep. 1898 | died in July 1905. ------------------------- ----------------------------- | | | | | | Ananda Nripendu Sindu Bala = Dakshina (son) Peary Radhika (son) (son) (daughter) | died June 1901 deft. 10 deft. 11 deft. 1. | | |Dhirendra ----------------------- | | Mohini Mohan = Tarangini alias Sikher Bashini = Ramesh Chandra Mazumdar | Jyotirmoyee (deft. 3) | Acharya (deft. 8) (deft. 9) |(deft. 2) (daughter) | | -------------------- Hari Das (son) | | defendant 12. Khitish (son) Jyotish (son) defendant 4. plaintiff.
2. Defendant 2, defendant 14 and defendant 8 died after the institution of the suit. Defendant 2 is represented by her husband and son and defendant 10 by his son Dhirendra. On 13th August 1905, defendants 1 to 3 executed a deed (Ex. l) in favour of defendant 4, then a minor, surrendering and relinquishing their right to the properties which Dakshina inherited from his father. On 16th August 1918, defendant 8 as guardian of defendant 4 mortgaged the disputed properties to defendant 5 and the father of defendants 6 and 7. On 18th March 1930 the mortgagees purchased the mortgaged properties in execution of a decree obtained on the basis of the mortgage. This sale was confirmed on 29th February 1932. On 25th May 1932, plaintiff raised the present suit. His case briefly stated is this : The deed of surrender executed by defendants 1 to 3 in favour of defendant 4 is invalid under the Hindu law. The auction sale at which defendants 5 to 7 have purchased the disputed properties therefore cannot affect the right of the reversionary heirs of Dakshina. Defendant 1 made an absolute gift of Rs. 1,20,000 to defendants 10 and 11, from the estate of Dakshina. This gift is not binding on the reversionary heirs of Dakshina.
3. He accordingly prayed for a declaration:
(a) that the deed of surrender and all acts done on the strength of the said deed by defendants 1 to 4 and 8 are not binding against the reversionary heirs of Dakshina;
(b) that the reversionary heirs of Dakshina are entitled to get back from defendants 10 and 11, Rs. 1,20,000. Defendants 1 to 3 and 12 did not appear in the suit. Defendants 4 and 8 filed written statement but did not contest the suit during trial. Defendants 5 to 7 filed a joint written statement. Their case is that the suit is barred by limitation and that the surrender by defendants 1 to 3 in favour of defendant 4 is valid in law and that they have acquired absolute interest in the disputed properties on the basis of their purchase at the mortgage sale. Defendants 10 and 11 also filed a joint written statement. Their case is that Rs. 1,20,000,. was paid to them by defendant 1 not out of the corpus of Dakshina's estate but out of the income accumulated after the death of Dakshina.
4. The material issues raised in suit are these:
1. Is the suit barred by limitation?
2. Is the alleged deed of surrender and relinquishment dated 12th August 1905 by defendants 1 to 3 of their respective life interest in favour of defendant 4 a valid and bona fide deed? Did the entire estate of late Babu Dakhina Mohan Roy vest in defendant 4 by the a
