SRIJUKTA SARAJU BALA DEBI Vs. SRIMATI JYOTIRMOYEE DEBI

JUDGEMENT

(1.) This is an appeal from a decree of the High Court of Calcutta affirming the decision of the Subordinate Judge of Dacca. The question for their Lordships' consideration is whether on a true construction of three leases executed by Raja Kali Narayan Roy Chowdhury in favour of his daughter Kripamoyee Debi she took an absolute estate or an estate for life. Both the Courts in India agreed in holding that she took an absolute estate of inheritance which she could dispose of by deed or will. All the three leases are described as miras talukdari puttas and putni talukdari puttas. The words "miras talukdari putta" imply a permanent and heritable estate. The words "putni talukdari putta" import a permanent heritable estate subject to a fixed rent. The leases comprised properties forming part of the Raja's zamindari estate.

(2.) The first lease was executed on 22 March, 1865. It begins with a description of the properties and after reciting the annual income thereof proceeds as follows: "You being my daughter, I grant you mirash taluk, by fixing Rs. 2,926 as the sadar rent thereof, for your maintenance, without selami, out of my affection for you. You and your sons born of your womb, and the sons born of their loins, in succession, and the daughters born of your womb, shall continue to enjoy (the same) on paying the said sadar rent into my zamindari sherista year by year, according to the instalments mentioned below, and living in village Joydebpur, with right of transfer by sale and gift and by cutting and filling up and by making homestead and orchard, according to the terms written below."

(3.) The sons, the male descendants of the sons, and the daughters of Kripamoyee are described in subsequent parts of the lease sometimes as "your said heirs,' and sometimes "as your heirs." The "terms" referred to above are as follows: "So that the descendants of your daughter and the adopted sons, or other sons of like character in your family, or your husband or co-wife and the children born of her womb, and the husband of your daughter, etc.-or the heir of any other kind should not have any right to this taluk and the right which I grant, of transfer by sale or gift, you will not be able to exercise freely according to your wish. It is special in this way -that if you wish to make a gift of some land for the spiritual benefit of your father, mother, mother-in-law or father-in-law, or for any religious act, you will be able to make gift to your Guru or Purohit of lands not exceeding five pakhis in each act; you or your said heirs will not have the right of making any gift exceeding the above. God forbid if your heirs aforesaid be under the necessity of making a sale or giving in mortgage by way of conditional sale or of giving ijara or kaimi patta, etc., or of making transfer in any way of the whole or any portion of this taluk, then you or they will have to sell the same to me or to my heirs at the value of tan gandas (times ?) the amount of the realizable rent that may remain after deducting the sadar rent, or grant kaimi mirash patta thereof, or, if it be necessary, to give in mortgage by way of conditional sale or grant ijara patta, you will have to do it according to rule; but you will not be able to sell or transfer as aforesaid, in any way, or mortgage by way of conditional sale or grant ijara or kaimi mirash patta to any other person. If you do so, the same will be rejected. If I or my heir on being requested, fail to purchase, etc., as aforesaid, or do not take in mortgage by way of conditional sale on ijara or kaimi mirash lease, then you or your heirs as aforesaid will be able to put in a petition in Court, by mentioning the terms of this patta, and on the expiry of three months from the date of that petition, to sell or give in mortgage by way of conditional sale or grant ijara or kaimi mirash patta or transfer in any other way; to that no objection on my part or on the part of my heirs will avail."