SM BROJESWARI DASSI Vs. MONORANJAN DUTTA

JUDGEMENT

(1.) This is an appeal by defendant 2 in a suit for a declaration that the deed of surrender by a widow of her husband's estate is void and inoperative. The trial Court held that the deed of surrender was valid and disposed of the suit. In appeal, the learned District Judge has held that the deed of surrender was invalid and has decreed the suit. The facts which are not in dispute are that the properties belonged to one Gopal who died leaving two sons Ananta and Benode and two or more daughters. The property was inherited in half share by Ananta and half share by Benode. Ananta died leaving a son Mohendra who inherited his half share. Benode died leaving a widow Kusum Kamini who inherited her husband's half share as her life estate. The plaintiff is a son of one of the daughters of Gopal. In 1926, the widow Kusum Kamini executed the deed of surrender in question in favour of Mohendra. In the deed she stated that she was surrendering to Mohendra, who was the next reversionary heir, all the properties which she inherited from her husband and she totally divested herself of all rights in the estate left by her husband. The said estate was described in the schedule to the document. That schedule described various properties in area, over 32 bighas, but there is one omission and that is a piece of homestead land about 6 cottahs in area in Dumka town. The plaintiff's case is that this Dumka property of 6 cottahs was part of the estate left by Benode to the widow Kusum Kamini and as she did not) include it in the, schedule to the deed of surrender, the deed was invalid on the basis that no deed, of surrender by the widow is valid unless the entire estate is surrendered.

(2.) The trial Court held that the widow had in fact transferred the whole of the estate of her husband and that as to the Dumka property she was under the impression that she had no subsisting interest in it as against the plaintiff. On that basis, the trial Court held that the deed of surrender was valid. In appeal, the learned District Judge held on a consideration of the facts that in the eye of the law Kusum Kamini's interest in the Dumka property subsisted up to the date of surrender in 1926 and the omission of that property rendered the deed of surrender invalid. The fact found by the Court below as to this Dumka property was that it was a piece of land about 6 cottahs in area. In the eastern portion of the land, the plaintiff Monoranjan had his house and he apparently wrongfully took possession of the western portion of 6 cottahs and claimed it as his own property. In 1892 the widow's husband Benode brought a title suit against the plaintiff Monoranjan and had a decree that the western 6 cottahs were his property but though the decree was obtained against the present plaintiff, the present plaintiff continued to occupy the Dumka land. Not only did he possess it but he did not pay any rent either to the husband or to his widow Kusum Kamini. Indeed, he raised money mortgaging this land as his own land. The trial Court found that from 1898 to 1926, a period of over 27 years, the plaintiff had been in wrongful possession of the land not paying any rent and denying the title of the widow, that in this position the widow was under the impression, that she had no subsisting interest in the Dumka property and that is why she did not mention it in the deed of surrender. The learned District Judge finds that though the plaintiff Monoranjan treated the entire property as his own, in the eye of the law Kusum Kamini's interest in the western portion subsisted up to the time of surrender.

(3.) In our opinion, the learned District Judge may be right in his view that in the eye of the law Kusum Kamini's interest subsisted in 1926. But having regard to the conduct of the plaintiff who had kept the widow and her husband before her out of possession of the property she had good reason to believe that she had no subsisting interest in it. Her omission of this property, therefore, cannot truly be considered to invalidate the deed. It is to be noted that the schedule enumerates the properties, but in the last portion of the deed she states that she becomes totally divested of all her rights in the estate left by her husband and all the rights in the said estate vest in the grantee. This last portion clearly means that the whole estate inherited by her from her husband is surrendered by her to the next reversioner. There is no portion kept back for herself. The omission of the Dumka property in the schedule has been explained. The omission in the view of the District Judge was a defect in the deed. The question is when there is such a defect, is the deed to be considered invalid? When two constructions of an instrument are possible, the law favours the construction which will make it valid. In understanding a deed, it should be taken most beneficially for the party in whose favour it is, made. A deed should not be considered void where the words may be applied to any intent to make it good: see Throckmerton V/s. Tracy 75 ER 222. In our opinion, the interpretation of the document by the trial Court was correct.