RADHARANI DASSYA Vs. BRINDARANI

JUDGEMENT

(1.) The parties in this case are governed by the Dayabhaga. The appeal is brought by the plaintiffs whose suit, instituted on 28 September 1930, in the Court of the Subordinate Judge at Dacca, has been dismissed by the trial Court (20 April 1932), and by the High Court (17 January 1936).. The plaintiffs are the mother, widow and son of Matilal Das who died on 24 October 1925, and between them they represent his estate. They claim that Matilal in 1918 succeeded to the whole estate of his uncle Sashi Mohan who had died unmarried on 1 October 1865. The plaintiffs' case is simply that on the death of Sashi Mohan his mother Shyam Peary succeeded to his property for the estate of a Hindu mother, and that on her death (16 November 1918), Matilal was the nearest reversioner to Sashi Mohan. They admit that in the events which have happened they have no need of relief as regard three-quarters of the estate left by Sashi Mohan, but they say that Brindarani Dasi, defendant 1, is in possession of and claims title to the remaining quarter. They seek a declaration of title and a decree for possession against her: the other defendants are joined pro forma. Brindarani is the only child of Radhika. Mohan surviving at the date of the suit, and she represents his estate.

(2.) There is little room for dispute as to the facts. Madhusudan Das was possessed of considerable property and a money-lending business. He died on 12 April 1865, leaving him surviving five sons of whom Sashi Mohan was the youngest. By his will dated 24 November 1855, he left his property to his sons in equal shares, and he directed that on his death his properties and business should continue to be managed and enjoyed jointly (in ejmali). the charge of the entire estate being made over to the sons as they came of age. As regards his mother and widow he directed that the amounts that might from time to time become necessary for going to holy places and for other due and needful expenses should be supplied from his estate by all the sons in equal shares. There was a provision entitling each of these ladies in case of disagreement among members of the family to a separate place for her residence, and certain guardians, nominated by the will, were to fix the amount of maintenance. He declared that his widow should be absolutely entitled to her own ornaments and any cash in her possession. In October 1865, a few months after the death of Madhusudan, Sashi Mohan died an infant and unmarried ; whereupon his mother Shyam Peary succeeded to his one-fifth interest (3 annas 4 gandas) in his father's estate. The eldest of the sons Mohini Mohan managed the various properties left by Madhusudan, but some questions having arisen between him and his three brothers, an agreement in writing dated 7th December 1875, was entered into by all four. This document ignored the mother's right to one-fifth of the property as representing Sashi Mohan, and proceeded on the footing that the four surviving brothers were the owners in equal shares. It provided that Mohini Mohan was to continue in management as karta consulting with his brothers upon certain matters; that the property should continue to be undivided, each brother drawing Rs. 300 per month from the estate; and that certain complaints which had been submitted to arbitration should be withdrawn. On 29 September 1877, there took place the transaction which gives rise to the dispute which has now been brought before their Lordships. This transaction is evidenced by or contained in two registered instruments each bearing date 29 September 1877, one being a nadabinama (release) executed by Shyam Peary and the other an ekrarnama (agreement) executed by Mohini Mohan and signed by his brother Lal Mohan as consenting thereto. The former is addressed to Mohini Mohan and the latter to Shyam Peary. The arguments which have been put forward upon the true construction of these documents make it necessary to set them out herein.

(3.) The question which arises upon them and upon the actings of the parties thereon is whether the Hindu mother's estate of Shyam Peary in the 1/5 share of Sashi Mohan (in his father's property) became extinguished so as to vest Sashi Mohan's one-fifth share in his surviving brothers subject to the monthly allowance of Rs. 150 which Shyam Peary had stipulated for. If the mother's interest was extinguished and the estate vested in the brothers, then the appellants' suit must fail as the Courts in India have held. To Sri Mohini Mohan Das, son of late Babu Madhu Sudan Das, inhabitant of Sabjimahal, Police Station Sadar, District Dacca, by occupation money-lender, trader and zemindar, and by caste Barendra Saha. I, Sreemati Shyampeary Dasya, widow of the said late Babu Madhu Sudan Das, residence, caste and occupation as above, do hereby execute this Nadabinama Patra (Deed of Release) to the effect following : My husband Babu Madhu Sudan Das having died, leaving him surviving five sons, namely, yourself, Radhika Mohan Das, Lal Mohan Das, Kshetra Mohan Das and Sasi Mohan Das, two daughters, namely, Sreemati Gangamani and Sreemati Jamuna and myself as his widow and providing by a Will dated 8 Agrahayan 1262 B. S. that the immovable and moveable properties left by him should be possessed, enjoyed and managed by the eldest son in succession, you being his eldest son and capable obtained a certificate from the District Judge of Dacca under Act 27 of 1860 according to the terms of the said Will and have been possessing, enjoying, managing and acting as Karta of all the moveable and immovable properties left by him. In the meantime, owing to bad luck, your youngest brother, born of my womb, namely Sashi Mohan Das, died unmarried on 16 Aswin 1272 B.S., and although you and my other sons are the next reversioners of the said deceased, yet according to the Sastras I am entitled to a right of enjoyment of the share left by the said deceased son, for my lifetime ; I having accordingly applied for obtaining a certificate under Act 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. Whereas my sons, yourself and others, are the real heirs and owners of the share left by the said deceased son and whereas I am never myself capable of managing the same without (the help of) those appointed to act as Karta of the estate left by my husband, namely yourself and others-I proposed to give up the right of enjoyment which I have and had in respect of the share left by the said deceased son, in the properties, etc., mentioned in the schedule below and in the properties that may in future be acquired with the profit thereof as well as in the money-lending and trading concern, Government promissory notes, Bank-shares etc., relating to the said estate, on condition of getting a Mashahara (monthly allowance), on and from the present months till the end of my life, at the rate of Rs.150 (one hundred and fifty rupees) at a lump per month out of the said estate, i. e. the share left by the said deceased son. And having agreed thereto, you have executed in my favour an Ekrarnama (agreement) stipulating to pay a sum of Rs. 150 in lump per month on condition that I shall have no power to sell or give away the right of getting the said money. Therefore being in full possession of my senses and out of my own accord, I give up, by this Nadabi (Release), whatever rights of enjoyment I have or had under the Sastras, in the share left by the deceased sons, on the aforesaid terms. Save and except getting this fixed monthly allowance in respect of the share of the said deceased son, I shall never be entitled to file any suit in Court, demanding any accounts, etc. for the past and making any sort of claims, etc. for the future. If I do the same shall be disallowed by the Court. To this effect I execute this Nadabinama (Deed of Release). Finis dated 14 Aswin 1284 B.S. To The worthy of remembrance Sreejukta (worm-eaten-Shyam Peary Dasya, widow of late Madhu Sudhan Das inhabitant of (?)) Sabjimahal, Police Station Sadar, District Dacca, by caste Barendra Saha, by occupation, money-lender, trader and zemindar etc.