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Petitioner: SOUDAMINI ROY MALAKAR VS Respondent: NARENDRA CHANDRA BARMAN
P L D 1952 Dacca 425
P L D 1952 Dacca 425
Before Muhammad Shahabuddin, C. J. and Faiyaz Ali, J
SOUDAMINI ROY MALAKAR‑Plaintiff--- Appellant
Versus
NARENDRA CHANDRA BARMAN and another ‑Respondents
Appeal from Original Decree No. 104 of 1943, decided on 31st August 1952, against the decree of Priyabrata Sen Additional District Judge, Third Court of Zilla Mymensingh dated the 6th October 1942, in Title (Partition) Suits Nos. 13, 11 and 2E of 1942 and 62 of 1940 of the 1st Sub‑Judge's Court,
(a) Bengal Tenancy Act (VIII of 1885), S. 103 (b) (v) Whether presumption could also arise in respect of non‑agricultural land entered in record of rights before amendment of 1928.
A record of rights could be validly prepared in respect of non‑agricultural as well as agricultural lands though the presumption could not be as wide as would be the case it the entries were with regard to matters which could be rightly and properly included in the record‑of‑rights. The record being a public record, the entry being one made by a public servant in discharge of his official duties there would arise a. presumption under section 103 (b) (v).
Rajah Sasi Kanta Acharjya Bahadur v. Sandhya Rani Dasi 26 C W N 483 ; Chand Mia Munshi and others v. Tukamia and others 28 C W N 516 and Rabindra Narayan v. Rai Gunendra Krishna Roy Bahadur 48 C W N 153 ref.
(b) Hindu Widows' Re‑marriage Act (XV of 1856), Ss. 2 and 3‑Apply to all Hindu widows whether re‑marriage allowed by caste or not‑Widow on re‑marriage forfeits rights in deceased husband's property‑Not, however, her rights of guardianship.
The removal of the legal disability in respect of certain Hindu widows who by custom were not allowed to remarry, mentioned in the preamble of the Act, was certainly the object of the Legislature ; and it appears that the Legislature could not have intended that the Hindu widows of the caste where custom allows remarriage should not have the advantage of the codified law but should be put to the necessity of proving the custom. The Act therefore applies to all Hindu widows who remarry, whether remarriage is allowed by their caste or not.
Under the Act and the principles of Hindu Law, a Hindu widow by remarriage forfeits her right to the deceased husband's property, even if the remarriage is allowed by the custom of her caste.
Section 3 of the Act does not lay down that the re marriage of a widow by itself leads to the forfeiture of her rights of guardianship. It only says that if she or any other person has not been made a guardian under the Will of her husband, application for the appointment of another guardian may be made and the Court may appoint another guardian.
[Case‑law discussed].
(c) Interpretation of Statutes‑Preamble‑Whether would restrict or extend enacting part.
The preamble cannot either restrict or extend the enacting part, when the language and the object and scope of the Act are not open to doubt.
Prokash Chandra Pakrashi and Profulla Kumar Nag for Appellant.
Birendra Kumar De for Respondents Nos. 3 and 6.
Khondkar Muhammad Hasan for Deputy Registrar.
JUDGMRNT
SHAHABUDDIN, C. J.‑-- This is an appeal from the judgment and decree, dated the 6th of October 1942, of the third Court of the Additional District judge at Mymensingh in a suit for partition brought by the appellant.
The property for the partition of which the suit under appeal was filed consists of C. S. Plots 1933 and 1934 of the town of Mymensingh with buildings, and other structures standing thereon ; and it originally belonged to one Kula Chandra Chakrabarty. The plaintiff claimed 3 as. 6 gds. 2 karas 2 krantis share of this property on the strength of Exh. 4, a deed of sale, dated the 12th September 1940, executed in his favour by Hemlata (defendant 12) and her daughter, Kamala (defendant 13). The case of the plaintiff was to the following effect :‑
Kula Chandra Chakrabarty lived with his concubine Kumudini, and had by her 2 sons Sarat and Probhat (defendants 11 and 1) and one daughter, Sashimukhi. He left a will bequeathing all the property to the three illegitimate children in equal shares. Sashimukhi died bequeathing her 1/3 share to her mother. Kumudini was intimate also with one Lakhshikanta, a friend of Kula Chandra Chakrabarty. After Kula's death, she married Lakshikanta in accordance with the Baishnav rites and a son (Satish) was born to them. Satish married defendant 12 and the 13th defendant, is their daughter. Kumudini died in 1907 and the 1/3 share of the suit property, which had been bequeathed to her by Sashimukhi, was inherited by Satish. Satish lived jointly with defendants 11 and 1 ; and at about the time of the Survey and Settlement of Mymensingh, which was begun in 1910, there arose a dispute among the three brothers with regard to the property. On a settlement of the dispute by arbitration, Satish got 3 annas, 6 gandas, 2 karas, 2 krantis share, while the remaining share of the property was divided between defendants 11 and 1 in equal halves. Defendant 11, being the eldest, was managing the property, and the respective shares of all the three brothers as determined at the arbitration were recorded in the Survey and Settlement Record. Thereafter Satish died in 1922‑23 and defendant 12 who got his share lost it under the Hindu Remarriage Act as she married again. Subsequently Hemlata and Kamala (defendants 12 and 13) found themselves in financial difficulties and the father and the second husband of Hemlata (Ramlal) were too poor to maintain them. Hemlata therefore appealed to defendants 1 and 11 for help, and they fraudulently got a release deed, or some other deed, executed by her by promising to pay her and her daughter a certain allowance, which promise they did not keep. Any deed which she executed is therefore void. It is also void because Hemlata had no right left to the property or to the guardianship of Kamala who was a minor then, as she (Hemlata) had married again, nor had she any justification to alienate the property which on her (Hemlata's) remarriage had, according to law, devolved on Kamala. Therefore, the share of Satish as defined in the Settlement Record came to vest in Kamala and she, after attaining majority in 1940, con veyed it to the plaintiff (by Exh. 4). As Sarat (defendant 11) alienated portions of the suit property as if he owned the entire 16 annas share, it was not feasible to jointly enjoy the share which the plaintiff had purchased, and consequently partition was necessary. Defendants other than those to whom reference has already been made were impleaded because they were transferees of specific portions of the suit property, alienated in their favour by Sarat.
Defendants 2, 3, 6 and 14 contested the suit. Sarat (De fendant 11) who had parted with his interest .in the property, pleaded that he was an unnecessary party, but he deposed for the contesting defendants, while his brother, the first defend ant, though he filed a written statement opposing the claim of the plaintiff, gave evidence in her favour, having, after this suit was filed, sold his interest to her husband's nephew. The case of the contesting defendants was as follows :‑
Sarat (defendant 11), Prabhat (defendant 1) and Sashi mukhi were the legitimate children of Kumudini by Kula, whilst Satish was her illegitimate son, there having been no legal marriage between Kumudini and Lakshikanta. Out of the 5 annas and odd share which Kumudini had obtained under the Will of her daughter, Sashimukhi, a 4 annas share was gifted by Kumudini (by Exh. A‑1, dated 11th December 1893) to Lakshikanta, who sold it (by Exh. B‑1, dated 27th November 1910), to Sarat and Probhat. Kumudini therefore at the time of her death had only one anna odd share. Satish being an illegitimate son did not inherit any share, and the one anna and odd share was inherited by Sarat and Prabhat. In any case, even if Satish is considered to be legitimate, he could get only 1/3 of the one anna odd share, that is 8 gandas and odd, and this share Hemlata (P. W. 12) on behalf of herself and on behalf of her daughter (P. W. 13) conveyed to Sarat (by Exh. C‑1). There being a custom in her caste allowing the widows to remarry, Hemlata did not lose either her right to the property left by Satish, or to the guardianship of her daughter (defendant 13). Conveyance by Hemlata to Sarat was therefore valid. There was no misrepresentation or fraud inducing her to execute Exh. C‑1, with the result that subse quent to that conveyance, Hemlata or Kamala had no share in this property which they could convey to the plaintiff. Sarat and Prabhat sold some portions of their share of the property and Sarat leased out the rest to the husband of the plaintiff who took a mortgage of the same. The mortgaged portion was then sold to the sixth defendant who, after redeeming the mortgage, filed a suit for the ejectment of the plaintiff's hus band. After the suit was brought, the plaintiff's husband secured Exh. 4 from Hemlata and Kamala in the name of the plaintiff in order to be able to avoid being ejected by defendant No. 6 and the suit under appeal was instituted in the name of the plaintiff as a counterblast to achieve that purpose.
The learned Additional District judge dismissed the suit. He held that Exh. A, the gift deed to Kumudini by Lakshi kanta, as well as Exh. C‑1, by Hemlata on behalf of herself and Kamala, in favour of Sarat, were valid and effective documents, and that the version that there was a dispute between Satish on the one hand and his brothers on the other, and that there was a settlement giving Satish 3 annas and odd share, could not be believed. He came to the conclusion that Hemlata and Kamala were entitled only to 8 gandas and odd share, and treated the entry in the record of rights as erroneous. He found that Sarat, Prabhat and Satish were all illegitimate sons of Kumudini and that, even if Hemlata forfeited her rights to her husband's property on account of her second marriage, she did not cease to be the guardian of Kamala, and that the conveyance under Exh. C‑1 by Hemlata to Sarat binds Kamala as it was for her benefit. Against this decision, the plaintiff has appealed.
At the commencement of the arguments, an attempt was made to substantiate the case of the plaintiff that Satish was a legitimate son of Kumudini, and that Sarat and Prabhat were illegitimate; but this position was abandoned later having regard to the fact that, in the gift deed (Exh 4‑1), as well as the Will (Exh. C‑2), which Kumudini had executed in con firmation of the gift deed and in order to leave the rest of her property to her three children (which Will; however, was not probated), she had referred to Kula as her husband and to Lakshikanta only as a friend. The arguments on both sides ultimately proceeded on the basis that all the three were the illegitimate sons of Kumudini.
The contentions raised by the learned Advocate for the appellant may be summarised thus
(1) The learned judge has not given due weight to the presumption of correctness which, under the law, attaches to an entry in the record‑of‑rights. His appreciation of evidence with regard to the dispute between the brothers and the family settlement giving 3 annas and odd shares to Satish is not correct. Exh. A‑1, the gift deed in favour of Lakshikanta, was only a paper transaction and even if Exh. A‑1 is regarded as a valid gift and Exh. B‑1 as a sale in favour of Sarat and Prabhat, alone, the subsequent dispute and its settlement among the three brothers, borne out by the entry in the record‑of‑rights, gave Satish 3 annas and odd share, which under Exh. 4 has now passed to the plaintiff.
(2) Exh. C‑1, executed by Hemlata, is void and ineffectual, because (a) it was the result of fraud exercised on Hemiata, a pardanashin woman ; (b) Hemlata when she executed it, had married again, and, as a consequence thereof, had lost not only her right to her first husband's property but also her right to be the guardian of Kamala ; (c) even if she did not lose her right to the guardianship of Kamala, there was no legal necessity or justification for her to alienate the property which belonged to Kamala, and Kamla, within three years of her attaining majority, conveyed her share to the plaintiff, ignoring the alienation by Hemlata (Exh. C‑1).
Arguments advanced on behalf of the contesting respon dents are to the following effects
(i) The evidence of family settlement between the three brothers was rightly disbelieved and the presumption with regard to the correctness of the entry in the record‑of‑rights does not arise as section 103 of the Bengal Tenancy Act, even if it applies, was enacted in 1928, whereas the record‑of‑rights in this case was published in 1916.
(ii) From Exh. 21, the deposition of Hemlata in another suit in respect of Exh. C‑1, it is quite clear that at the time of the execution of that document, Hemlata had the advantage of the advice of her father and her second husband, and, there fore, the points that have to be considered in the case of a pardanashin woman do not arise here.
(iii) Hemlata did not lose her right to her husband's property after her remarriage as section 2 of the Hindu Widows Remarriage Act does not apply to cases where remarriage is recognised by custom, and in this case the custom of the caste allowed remarriage of Hemlata, She conveyed her share to Sarat by Exh. C‑1 and so her conveyance to the appellant under Exh. 4 is of no avail, at least during her life‑time.
(iv) Assuming that Hemlata lost her right to the property, she did not lose her right to the guardianship of Kamala and the necessity for the alienation having been amply proved, the alienation under Exh. C‑1 is binding on Kamala.
We have considered Exh. A‑1 and in our opinion it was voluntarily executed by Kumudini. It is not disputed that Kumudini was friendly with Lakshikanta and whether she had become the lawfully wedded wife of Lakshikanta or not, there does not appear to be any doubt that they were living as hus band and wife, and that Satish was born to them. In such circumstances, the execution of Exh. A‑1 by her in favour of Lakshikanta is neither surprising nor improbable. We are not impressed by the argument of the learned Advocate for the appellant in this connection that it is hardly likely that she would have given away to Lakshikanta 4/5th of her property when there was her son, Satish, to be provided for, because, it is both natural and probable that she expected Lakshikanta to look after Satish who was his own son. However, there is no evidence to show that Kumudini acted under any undue influence or fraud, and we cannot ignore Exh. A‑1, merely because she was an illiterate woman.
Similarly in our opinion, it has not been established that Exh. C‑1 was executed by Hemlata under any misapprehen sion, undue influence or fraud. Her evidence in Exh. 21, which is relied on, on behalf of, the contesting respondents, is clearly against the plaintiff's case on this point. She deposed there that she had affixed her left thumb‑impression to this docu ment with the consent and advice of her father and her husband. She also stated that her father and her husband had accompanied her to see that her interest were not prejudiced. Exh. C‑1 has been attested by the second husband of Hemlata and her father is one of the executants. We have no reason to think that the father and the second husband of Hemlata played her false. The contention that consideration for this document did not pass cannot be accepted in view of the fact that the endorsement of the Sub‑Registrar shows that a sum of Rs. 380 in currency notes, which is the entire consideration of the deed, was paid in his presence. That Hemlata at the time was in financial difficulties, has been recited and admitted in Exh. 4, the title deed, of the appellant.
But from this it does not follow that the case of the plaintiff that Satish died possessed of 3 annas and odd share, has not been established. We have been taken through the evidence with regard to the dispute between the brothers and the amicable settlement thereof, and we find ourselves unable to agree with the learned judge on this point. P. W. Amirud din Ahmad and P. Ws. 3 and 6 deposed to the family settle ment. They said that they were witnesses to the document drawn up in respect of that settlement. The learned judge dis believed Amiruddin Ahmed (P. W. 1) because he admitted that plaintiff's husband visits his house and P. Ws. 3 and 6 because they said that P. W. 4 wrote the document while P. W, 4 has not deposed to that effect. In our opinion these reasons are not sufficient to discredit these witnesses. Plain tiff's husband according to Amiruddin Ahmed (P. W. 1) makes ornaments for his tenants and it is not strange that P. W. 1 knows the plaintiff's husband or that the latter used to visit P. W. 1. P. W. 3's evidence is that as far as he remembered, it was P. W. 4 who wrote the document. P. W. 6 was no doubt more definite about it, but P. W. 4 did not deny having written it. He did not say who the scribe was. These witnesses were speaking of a transaction that had taken place a long time before they gave evidence and the probability of their having been mistaken about some of the details cannot be reasonably excluded. P. W. 7 is a retired clerk of Sub Registrar's Office and a school fellow of Sarat and his‑evidence that Sarat told him about his family affairs is not improbable. He does not say that Sarat told him about the execution of the document, but it is quite likely that Sarat did not mention to him all the details. There is no reason to disbelieve his statement that Sarat told him that he made a settlement with his brothers.
There is then the definite evidence of Prabhat the first dependent that there was a settlement followed by a registered document, and the mere fact that he sold his share to the nephew of the plaintiff's husband is not by itself sufficient to discredit him. His evidence is not wholly in favour of the plaintiff on the other points. The evidence of the 13th witness for the plaintiff appears to us to be of considerable importance. This witness is an old member of the Mymensingh Bar who retired from practice about 15 years prior to his giving evidence in this suit. His house in Mymensingh is close to the suit property. He knew the family and his version is that at about the time of the settlement operations, some differences had arisen between the three brothers over their shares in the property of Kula Chandra Chakarbarty. They were living amicably prior to those differences and subsequently they did not make any complaint to him about their rights in the house; and his impression was that when the differences arose, they did go to him for advice as they used to consult him occasionally.
Attempt seems to have been made in cross‑examination to show 'that the evidence of this witness was procured by the plaintiff; but on a reading of his deposition, we are very favourably impressed by his evidence and we think that we can safely rely on it. We have examined the learned judge's criticism of this witness's evidence. He has observed that the memory of this witness could not be very strong at his age ; but we do not find any indication of failure of memory in his statement. It is true that this witness's impressions as regards the whereabouts of Lakshikanta at the time of settlement, or about the time when he executed a sale‑deed in favour of Sarat and Prabhat, conflict with the evidence of P. W. 3 ; but it is noteworthy that this witness (P. W. 13) has deposed* that he heard about the sale deed executed by Lakshikanta and his evidence in cross‑examination clearly indicates that he did not pretend to be definite about these details. This, how ever, does not justify our discrediting his definite evidence that at or about the time of the settlement there was a dispute amongst the brothers, that they used to consult him occasionally and that they never complained to him after the settlement operations.
Another observation made against this witness by the learned judge is that he was very positive that Sarat had the property recorded in the settlement. The learned Judge observes : "I think that the man cannot remember this and be positive about it. Sarat's evidence is that he was at Trisul then and that he could not say as to who recorded the lands of their bari in the settlement". But as a matter of fact, the witness cannot be said to be positive on this point. His evidence in examination‑in‑chief reads as follows : "During 'the time of the settlement, Sarat used to mange the affairs of the house because Sarat was the Karta ; so he must have recorded his house at the settlements". It was only in cross‑exami nation that he added, "Sarat got his basha recorded and not Lakshikanta. Sarat showed the boundaries of his house". Road as a whole his evidence amounts to this that his impres sion was that Sarat had the entries recorded in the record of rights. The learned Judge has also stated that the faculties of the witness did not appear strong : but we do not see any material inconsistency in his evidence ; nor does it appear that any note about the demeanour of the witness was made in the deposition.
The learned judge while discussing this part of the case, observes that it is hardly likely that Satish, who was about 17 or 18 years of age at the time the settlement proceedings started, would have raised a controversy about his share in the property. But we can see no improbability in such a dispute having been raised, for it is common knowledge that when disputes arise in a family, more often than not persons other than the actual disputants are responsible for the controversy. The learned judge appears to have believed Sarat's evidence that he was not present when the entries were made in the settlement records ; but in our opinion it is highly improbable that Sarat, who was the head of the family and a clerk in the Sub‑Registrar's Office and who must have known the import ance of survey and settlement operations and the entries in the record of rights left it to others to make representations for having the necessary entries made in the record. On the other hand, the probabilities are that he appeared before the settlement authorities, and that the entries in question were made at his instance as has been stated by his brother, Prabhat, in the evidence which he gave as a witness for the plaintiff. The matter, however, does not rest on oral evidence alone. There is the entry in the record of rights which gives Satish, not the entire share of Kumudini, but a three annas and odd share, while against each of the other two, a six annas odd share is mentioned. In the ordinary course, if Satish or some body who was interested in him was responsible for inserting a false entry in the record, one would expect the entry to be that Satish had a five annas and odd share, which Kumudini got under her daughter's will, or at least the four annas share which was gifted by Kumudini to Lakshikanta. In view of our conclusion with regard to Exh. A‑1, Kumudini had at the time of her death, only an anna and odd share. It aapears to us quite natural for Satish to have raised a dispute with regard to this state of affairs, particularly when he found that Lakshikanta had conveyed to Sarat and Prabhat what had been gifted to him, by Kumudini, and the fact that the settlement record shows that Satish had a three annas and odd share, very strongly supports and renders very probable the case of the plaintiff that there was a family settlement before the final preparation of the record‑of‑rights.
As regards the presumption that arises in respect of an entry in the record‑of‑rights under section 103 (b) (v) of the Bengal Tenancy Act, the contention of the learned Advocate for the respondents is that, prior to the amendment of the Act, the record‑of‑rights could be prepared only in respect of agricultural lands and not non‑agricultural, lands, that the amendment of 1928 cannot be retrospective in effect, and that therefore the presumption relied on by the plaintiff does not arise. In support of this contention, our attention has been drawn to the decisions in Rajah Sasi Kanta Acharjya Bahadur v. Sandhya Rani Dasi 26 C W N 483 and Chand Mia Munshi and others v. Tukamia and others 28 C W N 516. In the first of these cases, the lands described in the record of rights were "Chandina" lands, not subject to the provisions of the Bengal Tenancy Act. The contention advanced against the entry in the record of rights was that the revenue officer had no jurisdiction to make the entry as section 101 of the Act did not, prior to 1928, contain the expression "ail lands". The learned Chief Justice who delivered the judgment of the Bench observed that he was not prepared to go so far as to say that in that case no presumption arose from the entry in the…
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