RADHARANI DASSYA Vs. BRINDARANI DASSYA

JUDGEMENT

(1.) This is an appeal against the decree of the Subordinate Judge of Dacca dated 20 April 1932 by which he dismissed the plaintiffs suit for recovery of possession of about 16 gds. share of the estate of one Madhu Sudan Das, a wealthy banker and zemindar of the district of Dacca. The claim of the plaintiffs, who are appellants before us, turns on the legal effect of a document which was executed so far back as in the year 1877. In order to understand the questions raised by this appeal on behalf of the plaintiffs it is necessary to state a few circumstances which led to the execution of this document dated 29 September 1877 by Shyampeari Dassya in favour of Mohini Mohan Das, the eldest, son of the said Madhusudan Das. The relationship of the parties are shown in the following genealogical tree which is admitted by both parties. (See page 393)

(2.) It appears from the said tree that Madhu Sudan Das died leaving him surviving five sons Mohini Mohan, Radhika Mohan, Lal Mohan, Kshetra Mohan, and Sashi Mohan, and his wife Shyam Peary. One of the sons Sashi Mohan, died a few months after the death of Madhu Sudan Das on 1 October 1865, and under the Dayabhaga system of the Hindu Law Sashi Mohan's 1/5 share, which corresponds to 3 a Section 4 gds. share in the estate of Madhu Sudan Das, devolved on his mother Shyampeari. It appears that a will was executed by Madhu Sudan on 24 November 1855, several years before his death which happened on 12 April 1865. That will is to be found printed at p. 1 of the second part of the paperbook and has been marked as Ex. B in the suit. It is not necessary to refer to all the terms of the said will beyond stating that there is a provision in the said will by which the power of management of the estate left by Madhu Sudan after Madhu Sudan's death was given to the eldest son Mohini Mohan. Mohini according to the power given to him by the will was managing the properties. mentioned in the schedule as forming part of the estate of Madhu Sudan and other properties mentioned in the schedule. The next event which requires mention is the execution of the Nibandhan Patra on 7 December 1875, between the sons of Madhu Sudan except Sashi Mohan who had died in the meantime. See Ex. F printed at p. 11 of the second part of the paper book. In this Nibandhan patra it was stated that they were owners in equal shares of all the properties the moveable and immovable which stood in the name of their father Madhu Sudan as also of the money lending and trading concern, etc. In para. 1 of the said document it was stated that each of the sons would get a sum of Rs. 300 per month from the estate and that Mohini Mohan was to carry on the management and act as the Karta of the 16 as. of the estate left by his father. The karta was given the power to sell off any useless moveable or immoveable property of unprofitable nature with the consent of all the brothers. The Karta was to conduct law suits relating to the estate in his own name after stating the names of the three other brothers.

(3.) The one important thing which need be noticed with regard to this Nibandhan Patra is that this document which was executed in 1875 ignores the fact that Shashi Mohan's 1/5 share in Madhu-Sudan's estate had several years before devolved on the mother Shyampeari and practically ignores Shyampeari's interest in the estate. This brings us to the consideration of the Nadabinama which was executed by Shympeari in favour of Mohini Mohan as Karta of the joint family on 29 September 1875: See Ex. A printed at p. 21 of the second part of the paper book. It is important to notice in connection with this document that there is a recital in this document of the will of Madhusudan, more particularly of the fact that Mohini Mohan, the eldest son, being capable, obtained a certificate from the District Judge of Dacca under Act 27 of 1860 according to the terms of the Will and had been in possession enjoying, managing and acting as Karta of all the moveable and immoveable properties left by Madhusudan. There is a further statement that Mohini Mohan and other brothers who were alive were the real heirs of Madhusudan Das, but according to the Hindu. Shastras Shyampeari was entitled to a right of enjoying her shares in the estate left by her deceased son during her lifetime and the following clause may be quoted in extenso; because it will bear on another question, namely, that this document had the effect of a family arrangement apart from its being a deed of release. That clause is to the following effect: I having accordingly applied for obtaining a certificate under Section 27 of 1860, in respect of that share, my application was rejected up to the High Court, and the properties have remained in your possession and enjoyment and under your management. Although, being a Pardanashin woman of a respectable family, I was unable to carry on management, yet being, led by the evil advice of mischievous persons, I at times expressed a desire for instituting a title suit in Court for the share of the said deceased son and thus caused pain to the good heart of you, my son, born of my own womb, and as you are dissatisfied on account of that,. I am in great uneasiness of mind.