MAYA BASAK Vs. KALIDASI DASSI

JUDGEMENT

(1.) THIS is an appeal from an original decree. The plaintiff in a suit for declaration that she is the ultimate beneficiary in respect of the suit property and for an injunction restraining the defendant from alienating or encumbering the said property, is the appellant in this appeal. The suit was dismissed by the learned Judge, 4th Bench, City Civil Court at Calcutta and the decree of dismissal dated February 28, 1974, in Title Suit No. 707 of 1972 is the subject -matter of challenge in this appeal. The suit property is the undivided 1/3rd share in premises No. 23, Ram Mohan Saha Lane, P. S. Burtolla, Calcutta. That premises is the dwelling house of the co -sharer owners.

(2.) CERTAIN facts are not in dispute and those may be set out briefly as follows: - - The suit property that is the 1/3rd share in the aforesaid dwelling house was inherited in equal shares by two brothers Baidya Nath and Asutosh. In or about the year 1920 Baidya Nath died very young leaving behind the defendant Kalidasi Dassi as a child widow. By the Will executed by Baidya Nath, he bequeathed all his properties including his 1/6th share in the aforesaid dwelling house in favour of his brother Asutosh but subject to a provision that his widow Kalidasi would have a right of residence in the dwelling house, as aforesaid, during her lifetime. The Will further provided that apart from being properly maintained by Asutosh, the widow will get a monthly allowance of Rs. 20/ - out of the estate and in the event the widow does not live with Asutosh in the dwelling house she would be entitled to a sum of Rs. 40/ - per month towards her maintenance. There was a direction in the Will to the effect that Asutosh must set apart a sum of Rs. 12,000/ - invested in Government securities for the purpose of meeting the expenses for the widow's maintenance and monthly allowance out of the income thereof. The widow, the defendant in the present suit had been living in the dwelling house and Asutosh throughout his lifetime maintained her. Asutosh, however, failed to set apart the above sum of Rs. 12,000/ - or any sum out of which the widow could be maintained. Towards the end of his life Asutosh became apprehensive and repentant and on January 18, 1972, executed a deed of settlement in favour of the defendant Kali -dassi Dassi, inter alia, providing : 'AND WHEREAS the Settlor is now desirous of making some arrangement whereby his obligations under the aforesaid terms of settlement and the last Will and Testament of Baidya Nath Bhar deceased aforesaid can be carried out to some extent after his death. NOW THIS DEED WITNESSETH that in consideration of the reservations of the premises stated above the Settlor doth hereby grant assign and convey unto the Trustee all that the undivided one -third share vested in the Settlor in premises No. 23. Ram Mohan Saha Lane ..... TO HOLD the same for the benefit of herself, the trustee during her lifetime who shall be the sole beneficiary also under this Deed of Settlement on condition that upon the death of the Trustee the only daughter of the Settlor, namely Maya Rani Basak or her heirs shall be entitled to the said undivided one -third share in the said premises No. 23, Ram Mohan Saha Lane, Calcutta -6 PROVIDED HOWEVER that in the event of the said premises No. 23, Ram Mohan Saha Lane, Calcutta -6 or the undivided one -third share thereof hereby conveyed to the trustee is sold under orders of Court or is acquired by any public authority the proceed shall be held by the Trustee for her maintenance and she shall be entitled to spend the income as well as the corpus for her own maintenance and after her death if any residue is left thereof the same shall belong to Srimati Maya Basak the daughter of the Settlor or her heirs PROVIDED FURTHER HOWEVER that in case the Trustee finds that incumbent and imperative to sell the said undivided one -third share which is hereby conveyed to the Trustee for her own maintenance during her lifetime she shall have the right and power to dispose of and encumber the same without any reference to anyone else and defray the costs of her own maintenance out of the income us well as the corpus.'

(3.) THE defendant Kalidasi Dassi contested the suit by tiling a written statement. She strongly disputed the claim of the plaintiff that she was entitled to a sum of Rs. 40/ - per month only as maintenance and pleaded that under the Will of her husband she was to be properly maintained. She admitted having received a sum of Rupees 40/ - per month from Asutosh for some time taking into consideration the position that Asutosh having squandered his inheritance became indigent and was aged and ailing. She, however, pleaded that even Asutosh in paying the aforesaid sum of Rs. 40/ -used to bear other expenses of fuel, electricity, clothing, medicines etc., for the defendant, and as such, it cannot be claimed that the sum of Rs. 40/ - per month would be sufficient maintenance for her, more so, when after Asutosh's death she has to bear additional expenses like rates and taxes, electricity charges and repairing costs of the suit property. She admitted having refused to accept the sum of Rs. 120/ -sent to her by money order but she claimed that she refused to do so because the plaintiff had no legal obligation to maintain and the amount sent by her can hardly be proper maintenance in any view. On the deed of settlement she took the defence that she during her lifetime was the sole beneficiary having every right to alienate or encumber the suit property for the purpose of meeting the needs of her maintenance from the income as well as the corpus thereof. She denied that the plaintiff had got any vested interest and pleaded that she has merely a contingent interest only in respect of the residue that may be left back by her. On the pleading, as aforesaid, the defendant claimed that the suit is not maintainable and further pleaded a bar under Sections 34 and 39 of the Specific Relief Act.