SAILENDRA NATH DAS Vs. SAROJ KUMAR DAS

JUDGEMENT

(1.) This is an appeal from a decree of the High Court at Fort William in Bengal varying a decree of the Subordinate Judge in a suit in which the respondents (the plaintiffs) were seeking, against the two appellants and other defendants, certain declarations of title in regard to properties and to have a partition of the estate of which they alleged those properties were part.

(2.) The state of the family, with the affairs of which this suit is concerned, is this: One, Haralal, who died in 1874, had three sons, Mahendra, Narendra (who was a defendant) and Kedar. Kedar died in October 1918, leaving two sons, who are the defendants in the suit and appellants before their Lordships. Mahendra died on 21 November 1902, leaving a widow, Anandamoyi, who was a pro forma defendant in the suit, but has since died, and a number of children of whom three were daughters and one was a son. The son was Kalipada. On the death of Mahendra Anandamoyi became the guardian of Kalipada. Kalipada died on 26th September 1919, and thereupon Anandamoyi took out administration in respect of the estate of Kalipada, and, as his administratrix, became representative of the estate of Mahendra. Anandamoyi had a limited interest in the estate of Kalipada, who was the heir to Mahendra, and, subject to that limited interest, the estate of Kalipada belonged to respondents 1-3, who are children of sisters of Kalipada. Before her death, which occurred on 19 November 1932, namely, on 8 August 1923, Anandamoyi had surrendered her limited interest to respondents 1-3. There are three matters the subject-matter of the present appeal. These matters do not cover all the grounds covered by the decrees in the Courts in India. The first point relates to property which is called No. 1, and the nature of the point is this. The property stood in the name of the widow of Haralal, and the question was whether it was part of Haralal's estate, so that one-third of it belonged to the estate of Mahendra, or whether it was part of the estate of the widow of Haralal; in other words, whether she held it as benami for Haralal or not. Both the Courts in India have held that the property belonged to the estate of Haralal, but it is said that, although in one sense that is a concurrent finding of fact, it has been reached in fact upon a misconstruction of the relevant document. The relevant document is dated 27 August 1894, and is a deed signed by Haralal's widow by which she released her interest to her three sons, Mahendra, Narendra and Kedar. It is in these terms: "I have been in possession of the lands and buildings with all rights and appurtenances thereto, which my husband, Babu Haralal Das, acquired during his lifetime, in my own name with my Nij funds given by him for the purpose of my maintenance and religious rites; and my acts are being performed, carried on with the profits, that is, rents, etc., thereof. My husband is dead. You, three brothers, enjoy the profits of the immovable properties that stand in his own name by possessing the same in equal shares as his heirs. There is no other heir besides you three brothers, I cease to have any claim to the profits of the properties that stand in the name of my husband, the late Haralal Das, and which are enjoyed and possessed by you three brothers, as charge for my maintenance and religious rites, etc., save and except in the properties that stand in my own name and enjoyed and possessed by me. If I put forward any claim to profits arising out of the properties that stand in my husband's own name, it will be null and void."

(3.) Now the question is whether on the true construction of that document the widow of Haralal in effect admitted that the property was property which belonged to Haralal, subject to her rights for maintenance and religious rites, so that in effect she held it as benami for his estate? There is, in substance, no other material than this document upon which a conclusion can be reached. The Courts below have come to the conclusion that on the language of this document the property was held by the lady as benami for Haralal. Their Lordships are of opinion that the language of the document is consistent only with that view, especially having regard to the latter portion of the instrument, where the phrase occurs: "I cease to have any claim to the profits of the properties that stand in the name of my husband, the late Haralal Das, and which are enjoyed and possessed by you three brothers, as charge for my maintenance and religious rites, etc., save and except in the properties that stand in my own name and enjoyed and possessed by me."