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GAUHATI HIGH COURT
M. C. PATHAK AND BAHARUL ISLAM, J.
Annapurna Chakrabarty and others -Appellant
Versus
Kalpana Debi and others -Respondent
F.A. Nos.10 and 60 of 1965
Decided On : 25-07-1972
HINDU LAW - SUCCESSION - WIDOW - LIMITED INTEREST - ALIENATION - LEGAL NECESSITY - BURDEN OF PROOF - HINDU SUCCESSION ACT, 1956 (ACT XXX OF 1956), SECTIONS 3, 4, 14 - HINDU WIDOWS REMARRIAGE ACT, 1856 (ACT XV OF 1856), SECTION 2.
Fact of the Case:
Brindaban Goswami died on 20-4-49 leaving as his heirs Kalpana Debi, widow of predeceased son Bimal, Annapurna, Lila and Sailabala, who are daughters of Brindaban Goswami. Bimal, son of Brindaban Goswami, died in 1948. Kalpana, defendant No.1 re-married in February, 1958. The plaintiffs filed the suit for declaration of their right, title and interest in the suit land and for recovery of khas possession thereof.
Finding of the Court:
The suit land was the self-acquired property of late Rai Bahadur Brindaban Chandra Goswami and his two brothers had no share in it. Kalpana Debi, the widow of the predeceased son of Brindaban Goswami inherited the suit land as his legal heir and she acquired the limited interest known as a Hindu woman's estate in the suit land. The plaintiffs who are daughters of late Brindahan Chandra Goswami being only next reversioners could not inherit the suit land when the succession opened on the death of their father in 1949. Under the Hindu Law of Succession in Dayabhaga School, the defendant No.1 inherited the suit land on the death of Brindahan Chandra Goswami. Kalpana Debi had the widow's estate in the suit land and she is also found to be in possession through tenants and in law. The alleged transfers under Exts.A, B, C, D and E are no transfers at all by Defendant 1 in the eye of law and they did not confer any title, even limited interest, to the transferees. That being the position when the Hindu Succession Act, 1956 came into force on June 17, 1956, Defendant No. 1 who has been found to be in possession of the suit land must be held to be full owner of the suit land and her limited estate in the suit land transformed into absolute estate on and from June 17, 1956, under Section 14 of the Hindu Succession Act, 1956.
Issues: None
Ratio Decidendi: The interest thus devolved on a Hindu widow, under the provisions of Section 3 of the said Act, is only the limited interest known as a Hindu woman's estate. Hence under the Dayabhaga law of succession as it stood in 1949 when Brindaban Chandra Goswami died, Kalpana Debi, the widow of the predeceased son of Brindaban Goswami inherited the suit land as his legal heir and she acquired the limited interest known as a Hindu woman's estate in the suit land. The plaintiffs who are daughters of late Brindahan Chandra Goswami being only next reversioners could not inherit the suit land when the succession opened on the death of their father in 1949. Under the Hindu Law of Succession in Dayabhaga School, the defendant No.1 inherited the suit land on the death of Brindahan Chandra Goswami.
Final Decision: The judgment and decree of the learned Subordinate Judge are set aside and the Plaintiffs suit stands dismissed in toto. Consequently both F.A.10 of 1965 as well as F.A.60 of 1965 stand dismissed. In the facts and circumstances of the case we leave the parties to bear their costs of the suit as well as of these appeals.
PATHAK, J.:- These two appeals are from the decree passed by the learned Subordinate Judge L.A.D. at Nowgong in Title Suit No.5 of 1961. The Plaintiffs filed the suit for declaration of their right, title and interest in the lands described in the schedule to the plaint, hereinafter referred to as the suit land, and for recovery of khas possession thereof.
2. The plaintiffs case may briefly be stated:-
The plaintiffs are daughters of late Brindaban Chandra Goswami; Pro forma Defendants Nos.11 and 12 are the sons of plaintiff No.1; Pro forma Defendant No.13 is the son of plaintiff No.2; Pro forma Defendants Nos.14 and 15 are the minor sons of plaintiff No.3; Pro forma Defendant No.16 is the widow of late Golok Chandra Goswami, brother of late Brindaban Goswami; and Defendant No.2 is the son of Pro forma Defendant No.16. Defendant No.1 is the widow of late Bimal Goswami, a predeceased son of Brindaban Chandra Goswami. Defendant No.1 remarried after the death of Brindaban Chandra Goswami.
That the suit land originally belonged to late Brindaban Chandra Goswami who died on 20th April, 1949 leaving the plaintiffs and defendant No.1 as his heirs. The defendant No.1 inherited the suit properties as the widow of the predeceased son of Brindaban Chandra Goswami. Defendant No.2 though not an heir of late Brindaban Chandra Goswami got his name mutated fraudulently and in collusion with defendant No.1. That the suit land was the self-acquired property of late Brindaban Chandra Goswami. Defendant No.1 has remarried in February, 1958 and for that reason she had disentitled herself of all the suit land which she inherited from late Brindaban Chandra Goswami as the widow of his predeceased son and therefore the plaintiffs have inherited the suit lands left by their father late Brindaban Chandra Goswami. That the suit lands have devolved on the plaintiffs on the remarriage of defendant No.1.
That the defendant No.1 transferred some of the suit land to Defendants 3 to 10 by Registered sale deeds Exts.A, B, C, D and E dated 8-11-1953 without any legal necessity and without any consideration and therefore those transfers are invalid and after the remarriage of defendant No.1, defendants 3 to 10 have no right to retain the portions of the suit land purchased by them from defendant No.1. The plaintiffs asked defendants Nos.3 to 10 to give up possession which they refused to do and they also denied the plaintiffs right, title and interest in the suit land. Hence the plaintiffs have filed the present suit.
2-A. Defendant No.1 has not contested the suit and she has not filed any written statement.
Defendant No.2 being insane is represented by guardian ad litem who filed a written statement contesting the suit. The Pro forma Defendant No.16 also filed a written statement. The main contention of defendants No.2 and No.16 is that the suit land was the ejamali property of 3 brothers, namely, (1) Jagat Chandra Goswami (2) Golok Chandra Goswami and (3) Brindaban Chandra Goswami, who inherited it from their father late Chandrahash Goswami and as such defendant No.2 is entitled to 1/3rd share of the suit land, he being the sole heir of late Golok Chandra Goswami. It is further averred in their written statements that the suit is bad for non-joinder of all the heirs of Jagat Goswami, Golok Goswami and Brindaban Goswami, for multifariousness and it is barred by limitation and the principle of waiver, estoppel and acquiescence. It was further stated that Defendant No.1 became the title holder of ½ share of the suit land.
Pro forma Defendants Nos.14 and 15 filed a written statement supporting the plaintiffs.
Defendants Nos.3, 5, 6, 8 and 10 filed a joint written statement and defendants 4, 4(a), 4(b) and 4(c) who are the heirs of deceased defendant No.4 Jabed Ali and defendant No.9 filed a joint written statement contesting the suit. Their contentions briefly are that there is no cause of action for the suit. That the suit is not maintainable in its present form
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