DHARANI KANT LAHIRI CHOWDHRY Vs. KRISTO KUMARI CHOWDHRANI

JUDGEMENT

(1.) AT a sale on the 6th of September 1871, in execution of a decree against one Goluck Nath Chowdhry, the original appellant, Tarini Kant Lahiri Chowdhry, who has died during this appeal, became the purchaser, for Rs. 61,100, of whatever right, title and interest Goluck Nath had in 12 gundas out of a share of 1 anna 15 gundas of the zamindari No. 144 of Pergunnah Sherpur in the Zillah Mymensingh, and received the sale certificate of the Court, dated the 30th November 1871. It does not appear that he took any steps upon this purchase to obtain registration of his name, but upon Srimati Chowdhrani, the widow of Goluck Nath (he having died in the meantime), making an application, under Bengal Act VII of 1876, to the Deputy Collector of Mymensingh to have her name registered in respect of the three gundas share of the 1 anna 15 gundas, he objected, on the ground that she had no share in the estate, and was not entitled to registration. The title of Srimati Chowdhrani was said to be founded on a purchase by her, at a sale on the 9th of June 1842, of the three gundas share, part of 12 gundas, of which her husband Goluck Nath was then the proprietor, by the Collector of Mymensingh, in satisfaction of a claim of the Government against Goluck Nath as surety for one Jugal Kishore Sen, who was employed in the Mymensingh Collectorate. The appellant contended that this purchase was a benami transaction, and that Goluck Nath was the real owner of the three gundas when the sale to him was made. The Deputy Collector rightly refrained from deciding that question. He found that Srimati, subsequently to her purchase, obtained registration of her name as proprietress jointly with the other proprietors, but did not find the date of it more precisely. He found that the ijardar, who will be referred to afterwards, was in possession for her, and that her name was in the previous register of proprietors, and ordered her to be registered as proprietress of what he described as equivalent to the three gundas share. This order was made on the 28th February 1878, and in consequence of it the present suit was instituted, on the 27th of February 1879, by the appellant against Srimati and her son Hurro Coomar Chowdhry. The plaint prayed that the plaintiff's title to the three gundas might be declared, and his name be directed to be registered in respect thereof. The written statement of Srimati stated that she made the purchase bond fide, and really for herself, with the money of her own funds and own stridhan.

(2.) GOLUCK Nath was the son of Rama Nath, one of five brothers, each of whom had a share of six gundas in the estate. On the death of Rama Nath, Goluck Nath became entitled to his six gundas. He afterwards inherited the six gundas of one of his uncles, and, being thus entitled to twelve gundas, became surety for Jugal Kishore Sen, and pledged one-fourth of his then share in the property. This fourth was the three gundas sold on the 9th of June 1842. Subsequently Goluck Nath inherited the share of another uncle, and he then sold a twelve-gunda share to one Shib Dyal Tewari, and, upon the same date, he and his wife Srimati executed, in favour of Shib Dyal Tewari, an ijara, or usufructuary mortgage, of a further six gundas share for the period of 26 years. The date of this ijara is the 6th December 1859. Its not having expired when the suit was brought is the reason that the plaint prayed for a declaration of title only and not for possession. After this sale and mortgage Goluck Nath inherited the share of another uncle; and thus, at the time of the execution sale in September 1871, there were twelve gundas, of which Goluck Nath was clearly entitled to nine, and the remaining three are the subject of the present suit.