Tarapada Sadhukhan vs Ganoda Prasad Sadhukhan

P.N. Mookerjee, J.—The Appellants and Respondent No. 1 are close relations, the Appellants being nephews of the Respondent. The ether Respondent Messrs. Sinclair Murray and Company is a lessee in respect of one of the suit properties.

The disputed properties along with many other items belonged to one Girish Chandra Sadhukhan. Girish had two wives. By the first, he had a son Becharom and his second wife Benodini bore him three sons-Panchanan, Amulya and Ganoda. Girish died in or about 1313 B.S. and he was survived by his second wife Benodini and by all his four sons, Becharam, Panchanan, Amulya and Ganoda. The properties of Girish thus devolved on his death on his said four sons.

Some time in 1317 B.S. Panchanan died childless leaving as his sole heir and legal representative his widow Sm. Khagabala Dasi and shortly thereafter the joint properties of the four brothers were partitioned through the arbitration of their common relative Chandi Charan Sadhukhan. The award of this arbitrator which made the allotments between the four branches, represented by the three surviving brothers Becharam, Amulya and Ganoda and the widow Sm. Khagabala of the deceased brother Panchanan and which made provision also for the surviving widow of Girish, namely, Benodini, was duly registered and accepted by all the parties. That award is dated February 27, 1920. It is Ex. 1 in the present case and on the construction and effect of that award depends the decision of this appeal.

By the award the suit properties were allotted to Sm. Khagabala, the relevant paragraph being para. 4 which is in these terms:

In accordance with the share due to the said Sreemati Khagabala Dasi in the joint properties as heir of her deceased husband Panchanan Sadhukhan, I do hereby specify for her use (1) the garden land situate at No. 73, South Sinthee Road, (2) one room in the upper storey and on the first floor and one room on the ground floor and the courtyard, water-tap and the privy on the north-eastern side of the portion of the dwelling house situate at No. 13, Halsibagan Road, which is shown in red colour and marked ka. The said Sreemati Khagabala Dasi will have life-interest only in the said properties she will not be entitled to make a gift or sale of the same and she will enjoy and possess the same on becoming the owner thereof an the right of a Hindu widow. None of the other parties shall have any claim and demand in respect thereof so long as she will remain alive. Be it stated that the said Sree Gnanodaprosad Sadhukhan shall pay all the expenses of repairs, etc., if the two rooms in the said dwelling house situate at No. 13, Halsibagan Road, and the taxes, etc., in respect thereof. Full particulars of all these properties are given in sch. gha below.

and in para. 9 of the award it was provided as follows:

I do hereby also determine that after the death of Sreemati Khagabala Dasi, Sree Amulya Charan Sadhukhan and Sree Ganoda Prosad Sadhukhan will both get in equal shares the properties of sch. gha allotted to her for her life-time, viz., the garden-house at No. 73, South Sinthee Road, and the thakur dalan. I also determine that after the death of Sreemati Khagabala Dasi, Sree Ganoda Prosad Sadhukhan will get the two rooms in the upper storey and ground floor of the dwelling house at No. 13, Halsibagan Road, which she has obtained in life-interest.

In terms of the award the parties took possession of their respective allotments and Sm. Khagabala remained in enjoyment and occupation of her allotted portion till her death in Falgoon, 1352 B.S, In the meantime Amulya had died in 1349 B.S. leaving his three sons, the Appellants and his widow Sm. Giribala Dasi as his heirs and it also appears that during her life-time Sm. Khagabala had leased out a portion of the property at No. 73, South Sinthee Road, to the Respondent No. 2, Messrs. Sinclair Murray and Company

On Khagabala''s death disputes arose between the Respondent No. 1, Ganoda, on the one hand and the Appellants who are Amulya''s sons on the other as to their respective rights in regard to the properties allotted to Khagabala under the award (Ex. 1). The Appellants took their stand on para. 9 of the award and they claimed that the division of Khagabala''s allotment, as envisaged therein, had conferred on Amulya and Ganoda vested interests in their respective portions of that allotment under the said division and, accordingly, upon Amulya''s death his said portion had devolved on the Appellants and their mother Giribala. Ganoda, on the other hand, contended that as Khagabala had a Hindu widow''s estate in her allotment under the award the same on her death had passed to the actual reversioner at the time who was no other than Ganoda himself, the other erstwhile presumptive reversioner Amulya having admittedly predeceased Khagabala. These rival claims gave rise to the present suit.

The suit was instituted by Ganoda on July 10, 1946, and the plaint was framed on the footing of his above contention. In the suit the lessee company, Messrs, Sinclair Murray and Company were impleaded as Defendant No. 4. The suit was really contested by Amulya''s sons who were Defendants Nos. 1-3 and their principal defence was that, under the award Amulya had a vested interest in a part of the suit properties which had devolved on his death upon the Appellants and their mother Sm. Giribala Dasi. Their specific plea was to the effect that in regard to the suit properties which comprised the whole of Khagabala''s allotment the award provided that "Amulya Charan" "and Ganoda Prosad will get item No. 1 and the second item in "item No. 2" and that "Ganoda alone will get the first item in "item No. 2 in its entirety" and that the said interest of Amulya Charan-and of Ganoda as well-was a vested interest.

The main issue thus arising was whether Amulya had a vested interest in any part of the suit properties under the award (Ex. 1). Before the learned Subordinate Judge the arguments on this issue centred round two questions, namely, (1) whether the award (Ex. 1) was a family arrangement binding upon the parties and whether it should be so construed and given effect to as such and (2) whether, on its true construction, it conferred any vested interest on Amulya in regard to any part of the suit properties. Both these questions were answered by the learned Subordinate Judge in the negative and the defences to the suit were overruled. Hence the present appeal by the contesting Defendants.

The point that was urged in support of this appeal was that by the award (Ex. 1) Amulya had got a vested interest in a moiety of item No. 1 and the second part of item No. 2 of the suit properties and that, accordingly, the decree of the lower court should be modified to that extent. This argument was developed in two branches. It was contended first that the award (Ex. 1) had conferred merely a life-interest on Sm. Khagabala in her allotment with a vested remainder to each of the two brothers, then surviving of her deceased husband, namely, Amulya and Ganoda in terms of para. 9 thereof. In the second place the basic argument before the lower court was repeated in this Court and it was contended that the award was a family arrangement and full effect should be given to para- 9 in the sense that, even if Khagabala had in her allotment not a mere life-estate but the limited estate of a Hindu widow, the division of that allotment on her death between Amulya and Ganoda-or the two branches of the family, represented by them would be according to that paragraph.

The first contention is obviously untenable. Paragraph 4 of the award which makes the allotment to Khagabala clearly slates that she was to have a Hindu widow''s estate in the same. This nature of her interest is confirmed when we find in the opening lines of that paragraph that the properties were allotted to her in accordance with the share due to her in the joint properties as heir of her deceased husband, her interest in that share being clearly in law the interest of a Hindu widow. It is true that the said para 4 uses at two places the words " " and " " but it makes it clear that the grantee''s interest in the allotment should be that of a Hindu widow when it states " ". It does not appear also, on the materials now before the Court, that there was any dispute and even the existence of any such dispute would not have materially altered our conclusion on this part of the case in view of the clear words we have underlined above that she would get a one fourth share of the joint properties as heir to her deceased husband. It seems to us, therefore, that Khagabala got the interest of a Hindu widow in her allotment and not merely a life-interest and the words and in para. 4 and the word " " in para. 9 must be understood in that light. The Appellant''s first contention is, accordingly overruled.

The question of family arrangement was not specifically raised in the written statement or in the issues and, possibly, therefore, we have not before us full or complete evidence of the circumstances leading to the arbitration of Chandi Charan or his award (Ex. 1). All that we know is that after Panchanan''s death there were disputes between the parties which eventually led to the partition through the arbitrator (vide cross-examination of the Plaintiff (P.W. 1)). What was the nature of those disputes is not very clear nor have we any sufficient evidence as to the circumstances under which the said disputes between the parties were referred to arbitration or the arbitration was held and the award made. It is true that in some cases (e.g., Williams v. Williams (1867) 2 Ch.A. 294 and Helan Dasi v. Durga Das Mundal (1906) 4 C.L.J. 323) it has been held that the actual existence of disputes at the time was not necessary for the validity of a family arrangement, as it is understood in law, but, even then, the possibility or likelihood of disputes which appears to be implied in the phrase "preservation of the family property" used in the two leading cases on the subject, already cited, is necessary. Disputes, therefore,-either actual or prospective, and a bona fide settlement thereof have to be found (vide, Basanta Kumar Basu v. Ramshankar Ray (1931) ILR 59 Cal. 859, 861) and an enquiry into this aspect of the matter is necessary before the question of family arrangement can be finally answered. It thus appears, that the circumstances under which the alleged arrangement was made would be a relevant consideration in this case and an investigation in that behalf is necessary. We do not accept the Respondent''s argument that there is no question of any family arrangement in the present case as the whole matter rests upon an award. The award was admittedly accepted by all the parties and we do not think that the question of family arrangement can be altogether ruled out on the materials before us. Whether in the instant case there was a family arrangement, as it is understood in law, or whether a family arrangement can at all protect in law the disputed provisions or whether the family arrangement, if any, in the present case was of such a nature as to have that effect in law are entirely different matters. The second of those questions raised extremely difficult considerations but, having regard to the special favour which the courts have always accorded to family arrangements; (vide, Mst. Hardei v. Bhagawan Singh, (1919) 24 C.W.N. 105, 109. (P.)), we are inclined to think that there is much to be said in favour of the view, expressed in the cases of Uma Shankar v. Ram Charan ILR (1939) All. 950 (F.B.), and Vaddadi Kamaraju Vs. Kocherlakota Venkatalakshmipathi and Others, , and, as at present advised, we are not prepared to dissent from the said decisions on this point. We, accordingly, hold that it is necessary in the present case to find out whether in the instant case there was a "family "arrangement" within the accepted legal meaning of that expression and whether the disputed provisions were in substance part of that family arrangement which was the main or the ruling transaction and are protected as such on, the principle laid down in the two cases cited, namely, Uma Shankar v. Ram Claran (supra) and Kamaraju v. Kocharlakota (supra). The substance of the matter will have to be looked into. If it be family arrangement, as explained above, the transaction will be upheld; if, on the other hand, it turns out to be in essence either transfer or relinquishment of a spes successionis it will fail (vide, AIR 1923 189 (Privy Council) . This last quoted authority will not, so it seems to us, stand in the way of the validity of the disputed provisions if the same be in effect a part of a valid family arrangement which represents the true substance of the transaction. It is necessary, therefore, that this aspect of the matter should be properly investigated and for that purpose this case must go back to the trial court which will decide it in accordance with law in the light of the observations contained in this judgment, after allowing the parties opportunities to adduce further evidence on this point. The finding of the trial court on the nature of Khagabala''s interest under the award (Ex. 1) has already been affirmed by us and no other question except what has been stated above will be open for discussion before it. We may also place on record that the findings of the learned Subordinate Judge except on the two points to which we have expressly referred in the course of this judgment, namely, as to the nature of Khagabala''s interest under the award and that bearing on the question of family arrangement, were challenged before us and those unchallenged findings are also, therefore, affirmed.

Before concluding we ought to refer to two authorities, viz., the decisions of the Privy Council in Kanhai Lal v. Brij Lal and that of the Supreme Court in Dhiyan Singh v. Jugal Kishore (1952) S.C.A. 417 which were cited before us by the Appellants. Strictly speaking, however, both the above cases were decided on the law of estoppel-estoppel not on questions of law but on facts and neither of them can really assist the Appellants here. We have not overlooked also that in the two cases cited their Lordships did not rest their decisions on "family arrangement", although it was open to them to do so, if the view of law we have expressed above were accepted as correct. That, however, does not, in our opinion, affect the soundness of that view. Estoppel was found sufficient in the two cases cited and hence, apparently, no recourse to family arrangement was felt necessary. We do not think that the decisions quoted, although they may not strictly support the Appellants, are, in any sense, authorities against them.

We, accordingly, allow this appeal in part, set aside the decree of the trial court and send hack the case to that court for a reconsideration of the question of the alleged family arrangement and the legal effect thereof on the rights of the parties on the evidence already on record and such further evidence as the parties might choose to adduce on the point. No other question will be open for discussion at the rehearing and the learned Subordinate Judge will decide the question now remitted to him and will dispose of the suit itself on that finding in accordance with law in the light of the directions given above and the observations made in this judgment.

The costs of this appeal will abide the final result.

Mookerjee, J.

I agree.