GOUR CHANDRA DAS Vs. SUBASHINI DASI

JUDGEMENT

(1.) These two appeals are against the judgments and decrees of the District Judge of Murshidabad, modifying those of the Munsif of Jangipur. There were two suits for declaration of title and khas possession of two jamas. The lands originally belonged to Gagan Chandra Majhi and Uday Chandra Majhi and were mortgaged by them to one Keshab Choudhury. Keshab Choudhury died some time in 1889 and left a widow, a grandson and two grand- daughters by his predeceased son. The widow was named Rukmini. The grandson Asutosh died in the year 1899 leaving a widow Rajabala. The two grand-daughters of Keshab were named Subashini and Bindubashini. Rukmini, as guardian of Keshab's grandson Ashutosh, enforced the mortgage and purchased the mortgaged property in execution of the mortgage decree on the 16 June 1892. Thereafter, Rajabala brought a suit against her for possession of the properties left by her husband Ashutosh. This suit was compromised by a solenama dated the 22 January, 1902. Under that solenama it was stipulated that certain properties, including the properties in suit, would be possessed by Rukmini during her lifetime and after her death her grand-daughters Subashini and Bindubashini would get them and they being entitled to them would possess them (Satyabati and Dakhalkarini). Then in 1914 and 1915 two rent suits were brought by the landlord against Rukmini with regard to the lands in dispute. Rukmini died on the 14 January 1915 and decrees in the rent suits were passed after her death without bringing on the record the legal representatives of Rukmini, The rent- decrees were then put into execution and then the defendant purchased the properties and took possession through Court in August 1917. Bindubashini died sometime in 1920. The present suits were brought by Subashini alone for possession of the entire lands in dispute. The Munsif passed a decree in favour of Subashini with regard to 8-annas share on the ground that the rent-decrees in execution of which the defendant No. 1 had purchased the property were void and infructuous as having been passed against a dead person. After the death of Rukmini, Subashini and Bindubashini were entitled to 8-annas share each of the properties in dispute and as the heirs of Bindubashini did not bring any suit, plaintiff was only entitled to a decree for joint possession of 8-annas share of the lands in each of the suits. There were appeals by both parties against the decree of the Munsif. The District Judge held that by the terms of the solenama, the plaint lands went to Rukmini and after her death to her two grand- daughters for their lives and he further held that after the death of Rukmini her two granddaughters Subashini and Bindubashini succeeded to the properties in dispute as joint tenants, and that after the death of Bindubashini, Subashini was entitled to the whole of the lands as the survivor of the two joint tenants. In that view, he passed a decree for the entire lands in favour of the plaintiff. The defendant No. 1 appeals and the ground urged on his behalf is that the learned Judge was wrong in holding that Subashini and Bindubashini took as joint tenants. It ought to have been held that they were tenants-in-common. It was further contended that the two sisters were entitled to absolute interest in the properties and not only for their lives It is not disputed before us that Subashini is not the legal heir of Bindubashini and the decree of the learned Judge can only be supported if his decision that the two sisters took as joint tenants and not as tenants in-common is correct. There is nothing in the solenama which would show that the two ladies were to take as joint tenants. As was observed by the Privy Council in the case of Jogeswar Narain Deo V/s. Ram Chandra Dutt 23 C. 670 : 33 I.A. 37 : 7 Sar P.C.J. 13 : 6 M.L.J. 75 : 12 Ind. Dec. (N.S.) 445 (P.C.) "The principle of the joint tenancy appears to be unknown to Hindu Law, except in the case of co-parcenary between the members of an undivided family." The District Judge, therefore, was in error holding that the two sisters took as joint tenants. The contention on behalf of the appellant that the ladies took an absolute interest was not persisted in, but it was argued that even if they took as life-tenants the share which belonged to Bindubashini would revert to the true owner, and in this case it would be Rajabala. The mere fact that Rajabala's representatives do not dispute the interpretation of the solenama could not confer any right on the plaintiff to eject the defendant from the entire land. The defendant is entitled in a suit for ejectment to plead the title of a third party and to show that the plaintiff is not entitled to the whole of the interest she claims. The plaintiff's share is only 8-annas.

(2.) It must, therefore, be held that the plaintiff is entitled to recover possession of 8 annas share only in the lands in dispute. The judgment and decree of the District Judge must, therefore, be set aside and those of the Munsif restored with costs in both appeals in this Court and in the lower Appellate Court. Ewart Greaves, J.

(3.) I agree.