Amulay Krishna Ghosh vs Putumani Debi and Another

This is an appeal by the second defendant in an action by the reversioners for possession of certain properties which were described as Schedules III and IV. I propose to describe these properties under their Schedule numbers, that is to say, Schedules III and IV.

As regards the Schedule III lands, the widow on the death her husband being in possession, it appears, had fallen into arrear for rent to the superior landlord, and one Ganganarain Tewari, who was alleged to have purchased the interest of one Hitlal, thus became a co-sharer with the widow, and he Ganganarain Tewari, having paid the entire rent to the landlord brought an action for contribution against the widow and Radha Sukul her son-in-law in the Small Cause Court, obtained a decree and the property in execution of that decree was sold. It was purchased by the vendor of defendant No. 2 and then, as I have indicated, sold to defendant No. 2.

The argument, when the appeal was opened, proceeded on the footing of the Chota Nagpur Tenancy Act, but the sale took place prior to the coming into force of that Act and therefore has no application to the matter. Section 60 was quoted as showing a difference between that and Section 65 of the Bengal Tenancy Act. u/s 65 of the Bengal Tenancy Act at least there is a doubt whether it is the rent itself or the decree obtained for rent which is a first charge on the property. But it was argued that u/s 60 of the Chota Nagpur Tenancy Act any doubt on that point disappears. But, as I have said, the sale took place prior to the Act of 1908 and therefore there would be no question of the decree being a first charge, or the rent which was the subject-matter of the decree, being a first charge on the holding. Indeed in any event I should have to hold in this case that as the suit was a suit for contribution it could not have the force and effect of a rent decree. The decision in Ganesh Lal Pandit v. Khetramohan Mahapatra 95 Ind. Cas. 839 : 5 Pat. 585 : 53 I A 134 : AIR 1926 PO 56 : 24 A L J 615 : 430 LJ 545 : 28 Bom.L R 931 : 24 L W 50 : 51 M L J 82 : 7 P L T 501 : (1926) M W N 535 : 3 OWN 591 : 31 C W N 25 (P O). in no way assists the appellant on this question. In my opinion that case was made to depend upon whether this was a charge upon the land or not. It seems tome quite clearly that it was not. Therefore the appellant fails on this point.

The next suggestion was that the widow had abandoned the holding and that defendant No. 2 being the ultimate purchaser had been recognised by the landlord and therefore had obtained a title to the property. But the learned Judge in the Court below has stated that there was no case of abandonment by Raju Debya. In my judgment that statement is conclusive.

As regards the Schedule IV property that was made to depend upon whether there was or was not a gift to the son-in-law by the widow at the time of the son-in-law''s marriage to her daughter. The finding of the trial Court was in favour of defendant No. Had the gift been made, it was "necessity" under the law. The Appellate Court''s decision, however, seems to have left that matter in doubt.

As regards the question of law, there can be now no doubt on the point after the decision in Ram Sumran Prasad Vs. Govind Das, . As I have stated, the trial Court found both on the question of fact and on the question of law in favour of defendant No. 2 but the Appellate Court''s judgment is anything but clear as regards the matter. The learned Judge states

The learned Subordinate Judge has dismissed the plaintiff''s claim on the ground that it was given to Radha Sukul by Raju Debya as dowry at the time of his marriage and that it was a customary gift of the family.

Then he states

There is no reliable evidence to prove that there is any such custom in the family of Baneshwar Pathak

and he sums up his observations by saying

I do not think therefore that the transfer by Raju Debya has been proved to be for legal necessity,

According to the judgment, the case seems to have been made to depend upon whether there was such a custom in the family. Whether in fact there was such a gift is not clearly stated by the learned Judge. Whether his judgment means that as no custom was proved it is unlikely that the gift had taken place, I am left in doubt. The position in law is quite clear, that if in fact a gift had been made it would have been a valid transfer and defendant No. 2 in the events which have happened would have got a title. Had the trial Court found against defendant No. 2 on this part of the case and as the Appellate Court has in fact found against him, it would in those circumstances be a judgment of affirmance and I should hesitate before interfering with the judgment of the learned Judge in the Court below. But as his judgment is a judgment of reversal on this point, it seems to me to be necessary, in order to determine the question, that the Judge should come to a clear finding as regards this matter.

So far as the Schedule IV lands (the bandhnamo lands) are concerned, it will be necessary to remand the case to the learned Judge for a finding. If he finds that there was in fact a gift as dowry to Radha Sukul, there will be a judgment in favour of defendant No. 2. If he finds that there was in fact no such gift, his judgment will be affirmed and this appeal will be dismissed.

The matter will therefore be remanded to the learned District Judge to determine this question, upon the result of which, the result of this appeal will depend. The remand to the learned District Judge is made for the final determination of the case.

The costs of this appeal will abide the hearing in the Court below.