DINANATH BOSE Vs. MANGALA DEBI AND ORS

JUDGEMENT

(1.) This is a suit brought by Dinanath Bose against Mangala Debi and others, to recover possession of certain premises described as No. 20, Mirzapore Lane. The premises are called a lower-roomed dwelling-house, with the piece or parcel of land or ground on part whereof the same is erected and built, containing by estimation six and-a-half katas." They are all treated as No. 20, Mirzapore Lane, and I therefore take it that that part of the land on which the house is not erected is appurtenant to the house, and is part of the premises belonging to the dwelling-house; at any rate there was no proof that the defendants occupied more than the dwelling-house. The plaintiff claims, under a conveyance from Umes Chandra, dated the 10th of February 1869. Times Chandra was the adopted son of Sudharam Bhattacharjee, deceased, who was the husband of Mangala Debi; and it is in evidence that the husband lived in the plaintiff's dwelling-house with his wife up to the time of his death; and that, at the time of his death, Umes Chandra was an infant. Some question has been raised as to whether Umes Chandra had attained his majority at the time when he executed the conveyance; hut it is unnecessary to decide, for the purposes of the present suit, whether he was or was not a minor at that time. I certainly should not place any reliance on the horoscope produced by the boy's natural mother if it were necessary to decide the question, for it certainly does not come out of the possession of those with whom you would expect to find it, for it comes from the boy's own family, after he had ceased by reason of his adoption to be a member of that family. Besides, it does not, so far as I can judge, amount to a complete document of the kind. It has been attempted to be shown that the husband by a nuncupative will gave this property to his wife. But I do not think that the evidence is sufficient to show that the husband intended to make a will. Then, again, it is said, that Mangala Debi deposited the title deeds of this dwelling-house as a security for advances which had been made to her; but that fact, I think, has not been sufficiently proved in the absence of the production of those title-deeds by some person who claims to hold them as an equitable deposit.

(2.) The first question which we have to determine is, whether the plaintiff is entitled to turn out the widow of the adoptive father of his vendor, either with or without notice; and if he cannot turn her out without notice, whether the notice given in the present instance was sufficient. The nest question is, whether he is entitled to turn out the other defendants, some of whom have been proved to bold different parts of the house at a monthly rent under the widow, and others who have not been proved to be actually in possession. This last point may appear to be somewhat technical, but the probability is that, if those defendants had been proved to be in possession, it would also have been proved at the same time that they were holding parts of the house like the other defendants as monthly tenants.

(3.) I have very great doubt myself whether a son, either natural horn or adopted, is entitled to turn his father's widow and the other females of the family who are entitled to maintenance out of the dwelling selected by the father for his own residence, and in which he left the females of his family at the time of his death. No one who is at all acquainted with the usages and customs of Hindus can doubt, that it would be highly injurious to the reputation of the females of a family to be turned out of the residence, at least until some other proper place has been provided for them. It is laid down by Katyayana that, except his whole estate and "his dwelling-house, what remains after the food and clothing of his family, a man may give away, whatever it be, whether fixed or moveable, otherwise it may not be given 2 Colebrooke's Digest, 133. The meaning of that passage is, that he must not give away his whole estate without providing food and clothing for his family, and that he must reserve "one house, without which he himself or his family might want a dwelling." Jagganatha, in his commentary, referring to this text, says: It is meant generally, comprehending a pond supplying water for common use or the like.'' The meaning being that, whatever is appurtenant to a dwelling is to be retained with the dwelling. In the Dayabhaga, Chapter 6, section 2, verse 29, it is said, that no division of a house takes place."