KHAGENDRA NATH GHOSE Vs. MONMOTHA NATH MANNA

JUDGEMENT

(1.) In this case much unnecessary time has been wasted in argument over points which seem to be firmly settled so far as this Court is concerned. The appeal is on behalf of defendant 1 and arises out of a suit brought by the plaintiff, now respondent, for declaration of his title to certain properties mentioned in the plaint on the allegation that he is the successor of the reversionary heir to one Kartick Manna and is entitled to the properties in suit and that a previous alienation by the heir whom he has divested is not valid. In order to understand the contention raised in this appeal it is necessary to state a few facts regarding which there is no dispute before me. It appears that the property in suit belonged to one Chandra Manna who died leaving behind him a son Kartick and a daughter Panchubala and a sister's son Rajani Kanta Manna who is defendant 2 in the present suit. Kartick was married to one Promila who died on 1 Sravan 1332 B. S. and the question arose on her death as to who would succeed as reversionary heir to Kartick's estate. It appears that at the time of Promila's death Kartick's sister was enciente. But there was at that time alive defendant 2 he being Kartick's father's sister's son and in the absence of other heirs he would be the preferential heir under the Dayabhaga school of Hindu law.

(2.) After having succeeded to the estate of Kartick on Promila's death after 1 Sravan 1332 B. S. defendant 2 executed a Kobala in respect of the disputed property to defendant 1. Within 19 days of the death of Pomila, that is on 19 Sravan 1332 B. S. Panchubala gave birth to a son on 20 Pous 1332 B. S., who died shortly after, and plaintiff being the father succeeded to his infant son's estate. The Courts below have come to the conclusion that the plaintiff is entitled to a decree. They have held on a consideration of authorities on the point that the son of the plaintiff being in the womb at the time of the death of Kartick's wife Promila was the preferential heir to his father's (Kartick s) sister's son, and consequently after the death of such son his father, the present plaintiff, is entitled to succeed. Both the Courts below have agreed in decreeing the plaintiff's suit against defendant 1 and ex parte against defendant 2; plaintiff's title to the disputed land and ghar has been declared and his possession has been confirmed.

(3.) Against the concurrent judgments of the Courts below the present appeal has been brought and two points have been taken before me in support of this appeal. It has been argued in the first place that the rule of Hindu law which makes an after-born son who was in the womb at the time when succession opened out an heir to his father should not be extended to the case of others heirs. It is said that the authorities or rather the texts of the Hindu law really limit the application of the rule that an after-born person who was in the womb when succession opens out should succeed to the estate of the last owner should be restricted to the case of the male issues only. Reference has been made to a passage in Mr. Golap Chandra Sarkar's (Sastri s) book on Hindu law which would seem to suggest that this rule is applicable only to the proprietor's male issue. But unfortunately for the appellant in this case, whatever the strict Hindu law may be, ever since the year 1830 for nearly a century a series of judicial decisions have laid down that this rule should be extended to other heirs also not on the ground that there is a clear authority of the Hindu law on the question, but on the ground that the principle has been adopted by the modern systems of jurisprudence. Reference may be made in this connexion to the decision of their Lordships of the Judicial Committee of the Privy Council in the well-known case of Jatindra Mohan Tagore V/s. Ganendra Mohan Tagors, (1872) IA Sup Vol 47 as also to the decision of the same case reported in the supplementary L.. R. 1 I. A. at p. 7.