NABIN CHANDRA CHAKRAVARTI Vs. SMSHUNA MALA GHOSE

JUDGEMENT

(1.) The property in suit belonged to one Chandra Nath Chakravarti. He had two wives, Darga Sundari and Ambika, who survived him. By Durga he left a daughter Bharati, and by Ambika a daughter Tirtha Bashi. The plaintiffs are the sons of Bharati and defendant 4 is the son of Tirtha Bashi. Durga predeceased Ambika, and on the latter's death Chandra Nath's estate descended to his two daughters, but it actually was in possession of Tirtha Bashi. In 1298 B.S. Ambika the last holder of the life estate, died, and in order to perform her funeral rites Golok, the husband of Tirtha Bashi, took a loan of Rs. 250 from Rup Chand Ghose, the predecessor of the principal defendants, by mortgaging the entire estate of Chandra Nath on behalf of his wife. In 1299 B.S. a year after this transaction, Bharati came into the field and brought a suit against Tirtha Bashi and her husband to recover joint possession of the property left by Chandra Nath. The suit was settled between the parties in 1893. Under the terms of the settlement Tirtha Bashi was to get nine annas share of the property and Bharati seven annas, the former having taken upon herself the debt incurred for the funeral expenses of Ambika. In 1899 Tirtha and her husband executed a bond in favour of Rup Chand Ghose by mortgaging the nine annas share of the property obtained by compromise in Bharati's suit. Bharati predeceased Tirtha who died in 1925. In 1927 the present suit was brought by the plaintiffs for their 5/6ths share in the nine annas share of Chandra Nath's property held by Tirtha Bashi. Defendant 4, who is entitled to the remaining l/6 share, refused to join in the suit. Both the Courts below agreed in dismissing the plaintiff's suit. The plaintiffs have appealed and raised several points before us.

(2.) It is argued in the first place, that according to the findings of the Courts below the consideration of the sale to the defendants in 1899 was the debt incurred by Golok in 1891, but the defendants should not be allowed to plead that that was the real consideration. In Ex. D the deed of sale in favour of the defendants the consideration is said to be Rs. 200 paid in cash. The Courts below have found that the real consideration was not cash payment but discharge of the debt incurred by Golok in 1891, on behalf of his wife and renewed in 1894 by a bond executed by him and his wife. Mr. Roy Choudhury has strenuously argued that the Courts below should not have allowed the defendants to prove that the consideration, as stated in the document was not the real consideration, but there was some other consideration under Section 92, Evidence Act. It seems to have been settled by authority that it is permissible to prove that the consideration mentioned in the document was not the real consideration but something different. The leading ease on the point is Hukum Chand v. Hiralal [1878] 8 Bom. 159: see also Lala Himmat Sahay Singh V/s. Lhenhellen [1885) 11 Cal. 486. Section 92, Evidence Act, prohibits contradicting any of the terms of a document, provided by law to be reduced to the form of a document, by any oral agreement or statement. The consideration mentioned in a document is not one of the terms of the document, but it is the recital of a fact which can be contradicted or varied under proviso (i) to that section.

(3.) It is next urged that there was no legal necessity for the sale to the defendants even if it were admitted that the consideration was the debt incurred for discharging the expenses of the funeral of Chandra Nath's widow. This point also seems to have been settled by authority. A daughter inheriting her father's property may alienate a portion of it; for defraying the expenses of her mother's shradh: Sri Mohan Jha V/s. Brij Behari Missir [1909] 36 Cal. 753 Golap Chandra Sarkar's Hindu Law, Bin. 6, p. 679.