INDRAMONI DEVI Vs. RAGHUNATH BHANJA BIRABAR JAGDEB

JUDGEMENT

(1.) The petition arises out of a proceeding under Section 145, Criminal P. C. The dispute relates to 32 acres and odd of lands being admittedly maintenance lands of one Barn a Chandra Bidhar Samant Rama Chandra Bidhar Samant was the son of Krishna Chandra Bhanja, proprietor of killa Haldia within which the disputed lands are situate. Krishna Chandra had another son (Pitabas Bhanja) who being the elder succeeded, by the rule of primogeniture prevalent in the family in matters of succession and inheritance, to the killa. According to the family custom, Rama Chandra Bidhar (Samant got the disputed lands in lieu of the maintenance. The terms and conditions to which the maintenance grants are subject, as it appears from para 5 of the provincial settlement report (an Exhibit), were that they would revert to the proprietor of the killa if the Bhaya (Rama Chandra, in this particular case) became Nieantan (without issue), Rama Chandra died leaving behind Brajasunder Bidhar Samant his sou and a widow (Indramoni Devi, the petitioner before us). This widow was Ramchandra's second wife. Through her, Ramchandra had three daughters who are alive. Brajasunder too died prematurely leaving behind a widow (Arnapurna). The parties have fought an issue in the Court below as to whether Arnapurna is civily dead on account of her immoral character and a Tyagasudhi having been performed by Indramoni and other agnates in relation to her. I consider that to be wholly immaterial for the purpose of this case. Brajasundar died sometime in June 1946. In January 1947, the proprietor of Haladia, the principal member of the first party, got a deed of surrender executed by her in respect of these lands in lieu of securing her own maintenance and the maintenance for Indramoni by a separate deed. It should be borne in mind that Indramoni Devi is not a consenting party either to the deed of surrender or to the deed of maintenance. Her attitude is that she does not like to lose hold of the lands, her maintenance being a charge over it though it has not been so declared in the civil Court. Raghunath Bhanja, the principal member of the first party, took advantage of the portion that the previous tenants through whom Ramachandra, after him, his son Brajasunder and then Indramoni as well as Brajasunder's widow possessed the disputed lands were also tenants of killa Haladia and got certain pattas and muchalikas exchanged as between himself and the said tenants. Knowing that the tenants had gone over to the side of Raghunath, there arose naturally a tense feeling between the parties. As it usually happens, several people of the village Haladia were attracted sympathetically towards the widow. This gave rise to an apprehension of breach of the peace and was followed by the police report recommending the proceeding under Section 145, Criminal P. C.

(2.) Both parties filed their respective written statements. On the last day of hearing, the second party could not be present and the matter was heard and decided ex parts in favour of the first party. The first party had adduced evidence in support of their story of possession both documentary and oral. Their witnesses bad been cross examined by the second party, but the latter had not adduced any evidence before the Magistrate. In this state of things, the order having been passed in favour of the first party, the second party has come up in revision. The learned Magistrate, in his brief judgment, works out the problem with regard to the question of title in favour of Raghunath and then by an automatic process declares possession in his favour presumably relying solely upon the fact that the tenants had attorned, by execution of kabuliyat or muchalika, to Raghunath Bhanja, the proprietor of killa Haladia.

(3.) I have no hesitation in my mind that the ultimate right of reversion that reserved in case of this maintenance grant has not yet accrued. Mr. B.N. Das, appearing for the first party, wants to work out the possession in lieu of maintenance grant started from Brajasunder and argues that as Brajasunder has died Nisantan, the maintenance grant must exhaust itself and in the right of ultimate reversion the proprietor should succeed to the lands. When confronted, he cannot escape from the conclusion that the widow Indramoni Devi and Ramchandra Bidhar Samant's daughters have, their right of maintenance and right of residence in the family lands and in the family house; but he says that after Arnapurna (Brajasunder's widow) surrenders the property, thereby accelerating the reversion, that right must be deemed to have been lost. This I decline to pronounce as an admissible proposition. The position is crystal clear that Indramoni could sue Brajasunder or Brajasunder's widow for maintenance and could have got declaration of a charge in her favour as against these very properties, and this by the simple rule that these properties once belonged to her husband and in the hands of anybody who has come into possession thereof in virtue of a right derived from her husband or at any rate through him. It is also clear that under Hindu Law neither Brajasunder nor his widow could alienate these properties to the prejudice to the maintenance and residence rights of Indramoni and her daughters except if such alienation was for pressing necessity to the estate. The position of deed of surrender is much worse than that of transfer for consideration. The deed of surrender cannot, therefore, clothe Raghunath Bhanja, the proprietor of Haladia, with any right free from right inherent in Indramoni and her daughters by virtue of their right to be maintained out of these lands. In short, notwithstanding the deed of surrender, the position is the same as it should be if Brijasunder and his widow died leaving no issue behind. As I have said, so long as Ramachandra Bidhar Samant is not Nisantan, the property cannot revert back to the stock from which it came. The question of title, in the sense of right to possession, should, therefore, be decided in favour of Indramoni and her daughters. The daughters, I am told, are not parties. So they should not be bound by this decision.