SUSHEELASUNDAREE DASEE Vs. BISHNUPADA DE

JUDGEMENT

(1.) This is an appeal from the order of the learned District Judge of Khulna, dated 3 July 1931, affirming the order of the Munsif at Satkhira dated 16 July 1930. The circumstances which led to this litigation may be briefly stated thus: It appears that there was a tenure which belonged originally to one Anandaprasad Sadhukhan. That tenure was sold in execution of a decree for rent held under the Bengal Tenancy Act. Sarada and Annada were two uterine brothers, and Khagendra and Bhupendra were the stepbrothers of Sarada and Annada. Durlabhmani, against whom the rent decree was passed, was the widow of Annada, who is now dead. In the rent execution case an application was made under Section 174, Ben. Ten. Act, as now amended for the setting aside of the sale by one Bhishnupada, who claims to be the nephew of Annada that is his brother's son. An objection was raised by the auction- purchaser, Susheelasundaree, who is the appellant before us, that the application under Section 174 did not lie, as Bishnupada was not a person, whose interests were affected by the sale within the meaning of Section 174, Ben. Ten. Act, as amended by Bengal Act 4 of 1928. It was stated by the Munsif, who dealt with the matter in the first instance, that it was admitted that Bishnupada. was the reversioner and the Munsif accordingly set aside the sale the conditions for setting aside of the sale having been fulfilled by him.

(2.) An appeal was taken to the Court of the District Judge, who by his order, dated 4 May 1931, sent back the case to the Munsif for the purpose of enabling him to record evidence in respect of the assertion that Bishnupada was the reversionary heir, it being stated before the learned Judge that the Munsif had fallen into an error in holding that it was admitted before him that Bishnupada was the reversionary heir of the judgment-debtor, Durlabhmani. The case went back to the Munsif, who came to the conclusion that Bishnupada was the next reversioner he being the brother's son of Durlabhmani's husband, whereas the two stepbrothers of Durlabhmani's husband were not the preferential heirs under the Dayabhaga. school of Hindu law. The Munsif apparently relied upon the decision of Greaves, J., in the case of Sukhamayee Biswas V/s. Manoranjan Choudhury AIR 1926 Cal 428 and on a statement in Mr. Golapchandra Sarkar Shastri's Hindu Law, Edn. 6, 1927, pp. 519 and 520. The learned District Judge after considering the finding of the Munsif, also came to the conclusion that Bishnupada was the next reversionary heir and he consequently dismissed the appeal and set aside the sale. Against the concurrent decisions of the Courts below the present appeal has been brought and a preliminary objection has been taken to the hearing of the appeal on the ground that only one appeal is allowed, under the provisions of Section 174, Clause (5) as amended by the Act of 1928 and no second appeal lies. It is not necessary to decide this question in the view that we take of the merits of the appeal.

(3.) It has been contended on behalf of the appellant that the Munsif was clearly in error in coming to the conclusion that Bishnupada was the preferential heir. This contention seems to us to be right. It appears that the Munsif was misled by the decision of Greaves and Cuming, JJ., in the case of Sukhamayee Biswas just referred to; because that was a case of stridhan property and the question arose regarding succession to such property and this fact was overlooked and has misled also the editor of Golapchandra Sarkar's book on Hindu law, where he had put the stepbrother as coming not only after a brother's son but also after the sister's son in the line of succession under the Dayabhaga school. The text of the Dayabhaga on this point is as follows: In the absence of her mother there is the right of a uterine brother only;... in the absence of uterine brothers the stepbrothers of the same caste will inherit.