BEPIN KRISHNA RAY Vs. JOGESHWAR RAY

JUDGEMENT

(1.) The subject matter of the litigation which has culminated in this appeal is a share of an estate which bore Tauzi No. 93 on the revenue roll of the Collector of Hughli about the middle of the last century and was held by two proprietors, Ramsundar Bose and Harachandra Bose. The amount of revenue originally payable was fixed at Rs. 2,998 1-10; this was subsequently reduced to Rs. 2,971-1-11 when part of the estate was acquired for public purposes under the Land Acquisition Act. On the 29 September 1864, upon an application made under Section 10 of Act XI, 1859, the share of Harachandra Bose which amounted to 8 as. 16 gds. of the entire estate (treated as 16 as.) was formed into a separate account and was described in the books of the Collector as Tauzi No. 93A with proportionate amount of revenue payable fixed at Rs. 1,648-15-5. Thenceforward Tauzi No. 93 became what is termed the residuary share and included only a 7 as. 4 gds. share of the original estate which was vested in Ramsundar Bose. To put the matter briefly, before the separate account had been opened under Section 10 of the Revenue Sale Law the expression Tauzi No 93 would be the fitting description of the entire estate, but since the opening of the separate account was sanctioned by the Collector, the term Tauzi No. 93 could be appropriately used to specify only the residuary share 7 as 4 gds. of Ramsundar Bose, while the term Tauzi No. 93A could be properly used to designate only the separated share 8 as. 16 gds. of Harachandra Bose. It is necessary to mention at this stage that Harachandra Bose left four sons, Kailas Chandra, Makhanlal, Benilal and Brajalal, each of whom inherited one-fourth of his properties, that is, each took a 2 as. 4 gds. share out of the 8 as. 16 gds. share which belonged to their father. It also transpires that these four brothers acquired from the representatives of Ramsundar Bose, 1 an. 13 gds. 1 ka. 1 kr. share (out of the 7 as. 4 gds. share), namely, 1 anna. 1 gd. 1 ka. 1 kr. share by a conveyance dated 19th September 1862, an 8 gds. share by another conveyance dated 9 September 1873, and a 4 gds. share at an execution sale. Each of the four sons of Harachandra Bose thus acquired, in addition to his ancestral share, 2 as. 4 gds. in Tauzi No. 93A, one-fourth of 1 anna 13 gds. 1 ka. 1 kr. share, that is, an 8 gds. 1 ka. 1 kr. share in Tauzi No. 93. The shares thus vested in Benilal Bose (the third son of Harachandra Bose) in the two Tauzis mentioned, passed on his death to his son Ramchandra Bose, the predecessor-in-interest of the first seven defendants in the present litigation. We now come to three transfers effected by Ramchandra Bose, which are of vital importance in the determination of the questions in controversy in this suit.

(2.) On the 7 February 1903, Ramchandra Bose executed in favour of Jagadiswar Ray, the predecessor-in-interest of the plaintiffs in the present litigation, a mortgage-bond to secure a loan of Rs. 5,999; the property hypothecated was described as his own share of 2 as. 4 gds. which his father had possessed in "Tauzi No. 93." It will be observed that, although the share inherited by the mortgagor from his father was originally included in Tauzi No. 93 (which comprised the whole estate), at the date of the mortgage that Tauzi had been broken up into two fragments, namely, Tauzi No. 93A (which was the separate account and included the ancestral share of the mortgagor) and Tauzi No. 93 (the residuary estate which included only the share of Ramchandra Bose). Consequently, if what was intended to be mortgaged was the ancestral 2 as. 4 gds. share of the mortgagor, the description that it was a share of "Tauzi No. 93" (which, at the date of the transaction, had not the same connotation as it had prior to the opening of the separate account) might well lead to confusion:---indeed, as will presently appear, this has been the root of the present litigation.

(3.) The next document executed by Ramchandra Bose which deserves attention is a conveyance dated the 11 April 1911, in favour of Bipin Krishna Ray, the eighth defendant in the present litigation. This deed of absolute sale recites in full the history of the estate No. 93 and explains how the separate account Tauzi No. 93A. was carved thereout and the residuary estate Tauzi No. 93 was brought into existence. The document not only sets out the successive steps whereby the vendor had acquired an interest in both the Tauzis,---in the former by right of inheritance and in the latter by right of purchase,---but further mentions that on the 20 April 1868, a patni settlement was taken by Benilal Bose (one of the representatives of Harachandra Bone, the holder of the separate account Tauzi No 3 a) in respect of 1 anna 1 gd. 1 ka. 1 kr. share out of the 7 as. 4 gds. share whish constituted the residuary estate; this lease, though taken in the name of Ramlal Bose, was apparently for the benefit of himself and his three brothers. The deed finally recites two incumbrances (treated by the vendor, namely, first, a simple mortgage to Jagadiswar Ray of the 2 as. 4 gds. share inherited by him from his father and comprised in Tauzi No. 93A, and, secondly, a conditional mortgage dated 14 November 1909 in favour of J. F. Duncan of Calcutta, with respect to an 8 gds. 1 ka. 1 kr. share of his Zemindari interest and 5 gds. 1 ka. 1 kr. share of his patni interest; these, as we have seen, were comprised in the residuary estate Tauzi No. 93. The conveyance, after these recitals, proceeds finally to transfer to the purchaser, for a consideration of Rs. 1,000, the Zamindari right in 8 gds. 1 ka. 1 kr. share of the original Tauzi No. 93, deducting the 2 as. 4 gds. share out of the 8 as. 16 gds. share of Tauzi No. 93A, and the patni right in the 5 gds. 1 ka. 1 kr. share, together with a 2 as. 17 gds. 2 ka. 2 kr. share in certain resumed Chaukidari Chakran (service) lands. It is plain from the elaborate recitals in this document that the vendor did not keep bask from the purchaser any relevant information relating to the history of the title to the estate conveyed by him, and the purchaser was apprised how the original Tauzi No. 23 had been broken up into separate account, Tauzi No. 93A, (which wan subject to the mortgage in favour of Jagadiswar Ray) and the residuary estate Tauzi No. 93 which was transferred in part to the purchaser, subject to the patni lease in favour of Benilal Boss and the mortgage in favour of Da(sic)ncan.