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Petitioner: RAM DASI PAL VS Respondent: SUREBALA DASYA AND OTHERS
P L D 1963 Dacca 896
P L D 1963 Dacca 896
Before Hassan, J
RAM DASI PAL‑----Appellant
versus
SUREBALA DASYA AND OTHERS‑----Respondents
Appeal from Appellate Decree No. 904 of 1959, decided on 9th May 1962.
Hindu Law‑Adoption‑Inheritance‑Widow's power to adopt may or may not be exercised‑Non‑exercise of right‑No question of divesting or vesting of property‑Adoption may result in divesting of property‑Objects‑To secure, spiritual benefits and an heir to perpetuate adoptor's name‑Property vested in widow or her mother, divested subject to valid transfer but no effect on properties already vested in deities‑Right to shebaitship inheritable like other secular properties if adopted son predeceased adoptive mother Creation of successive life‑interest, valid.
Upendra Kumar Roy with D. C. Bhattacharjee for Appellant.
A. F. M. Mesbahuddin for Respondents Nos. 1, 3 and 4.
T. H. Khan for Respondents 2, 2 (ka) to 2 (kha).
JUDGMENT
Respondent No. 1 Surebala Dasya instituted a suit out of which the present appeal has arisen for declaration of her right of Shebaitship to the properties described in the schedules of the plaint with a consequential relief for injunction.
2. The facts necessary for disposal of the suit are as follows: --- The properties in dispute originally belonged to one Paju Pal. He adopted a son namely Brindaban and gave him in marriage to one Jamini Sundari. The adopted son Brindaban predeceased Paju Pal leaving behind Jamini Sundari and a daughter Surebala who is the plaintiff in the present suit. His death took place on the 20th of May 1912. Thereafter on the 14th of July 1912, corresponding to 30th Ashar, 1319, B. S. Paju executed and registered a Will which has been marked as Exh. 1 in the case. On the same date he executed an Arpannama (Exh. 2) dedicating some of his properties to the deities Lakshmi Narayan and Gupalji, Shortly after Paju Pal died on the 20th of July 1912. On 8th of July 1920 corresponding to 24th Ashar. 1327 B. S. Jamini Sundari the widow of Brindaban adopted Brajaraj on the basis of a power delegated to her by her husband Brindaban, Thereafter in March/April 1925 corresponding to Chaitra, 1331 B. S. Hara Sundari the widow of Paju Pal died. In May 1943 corresponding to Jaistba, 1350 B. S. the adopted son of Brindaban dies childless leaving behind a widow Ramdasi who is the defendant No. 1 in the present case. In 1955 Ram Dasi the widow of Brajaraj instituted Title Suit No. 13 of 1945 for her maintenance against Jamini Sundari, the widow of Brindaban and mother‑in‑law of Ram Dasi, but the suit was dismissed with an observation amongst others that Ram Dasi was the owner of the properties. In 1950 Ram Dasi the defendant No. 1 instituted Title Suit No. 14 of 1950 against Jamini and the deities and obtained an ex parte decree. Thereafter Jamini died on 17th of December 1950, corresponding to 12th Pous, 1357 B. S. The plaintiff in the present suit filed an application under Order IX, rule 13 in Title Suit No. 14 of 1950 but the same was dismissed. It appears that Ram Dasi the plaintiff of Title Suit No. 14 of 1950 and defendant No. 1 in this suit took delivery through Court on 19th of January 1951. But it has been found by the Courts below that she could not get possession through the peon's report was to that effect. It appears that she filed an application after the delivery of 19th of January 1951, for second execution and delivery alleging inter alia that the decree‑holder, namely the defendant No. 1 was not put in and could not get possession, but her application was dismissed. Thereafter on the 2nd of December 1953, Surebala, the plaintiff of this suit instituted the suit for declaration of Shebaitship and injunction. The suit was contested by the defendant No. 1 Ram Dasi alleging inter alia that the plaintiff was not the Shebait of the properties of the Dieties but Ram Dasi was the Shebait, that the plaintiff's suit in respect to Schedule I property which was gifted to her husband Brajaraj by her father‑in‑law Paju Pal devolved on her on the death of Brajaraj and as such the said properties were neither Debuttar properties nor the plaintiff had any right in those properties, that he claim that the properties were Debettar were barred by the principle of res judicata in view of the decision in Title Suit No. 14 of 1950, that the plaintiff was not the Shebait of the Deities but it was Ram Dasi and that the suit was barred by limitation and bad for defect of parties.
3. The added defendant, purchaser from defendant No. 1 filed written statement and supported defendant No. 1.
4. On these pleadings seven issues were raised and tried. The learned Munsif who tried the suit dismissed the suit holding that the suit was not maintainable as the same was barred by the principle of res judicata in view of the decision in Title Suit No. 14 of 1950, though he found that the suit was not barred in view of the provisions of section 42 of the Specific Relief Act, that the suit was not barred for defect of parties, that under the will and the Arpannama Brajaraj did not inherit any property nor became the Shebait and consequently Ram Dasi could not acquire any right in the properties either in her personal right or as a Shebait. On appeal by the plaintiff the learned Subordinate Judge accepted all the findings arrived at by the learned Munsif excepting that on the question of res judicata. In his opinion the suit was not barred by the principle of res judicata and in this view of the matter he decreed the suit. Hence the present appeal at the instance of the defendant Ram Dasi.
5. In the present appeal three main questions are involved one is the applicability of the principle of res judicata and two others in respect of interpretation of the Will which has been marked as Exh. 1 executed by Paju Pal and Arpannama which has been marked as Exh. 2 in this case. I have already stated that on the question of applicability of res judicata two Courts below came to a different finding but as to the interpretation of Exh. 1 and Exh. 2 they were of the same opinion.
6. Mr. Roy, the learned Advocate for the appellant, has pressed the following points: ---
(1) That the Court below erred in law in holding that Brajaraj did not and could not inherit on a wrong principle of Hindu Law as under the Hindu Law an adopted son is presum ed to be born in the family at the death of the testator or the adoptive father;
(2) That on the very terms of the Arpannama Surebala the plaintiff cannot claim Shebaitship;
(a) that the Arpannama (Exh. 2) gives a line of devolution of Shebaitship which is against the ordinary Hindu Law of inheritance;
(b) and that Shebaitship is the property and is governed by the law of inheritance ;
(3) That the present suit is barred by res judicata in view of the decision in Title Suit No. 14 of 1950.
7. I propose to deal with the question of res judicata, first question of res judicata arises in the following way:
I find from the plaint (Exh. 7) of Title Suit No. 14 of 1950 that the defendant Ram Dasi instituted Title Suit No. 13 of 1945 for her maintenance against Jamini Sundari, the second executive which was dismissed on the ground that the suit was misconceived and that Ram Dasi was the owner of schedule Ka properties and Shebait of Schedule Kha properties. The relevant portion of the plaint along with the paper application n Title Suit No. 14 of 1950 runs as follows:
In pursuance of the above‑mentioned judgment and decree the plaintiff has become the owner and possessor of the properties mentioned in Schedule ka according to the provisions of Hindu Law. The plaintiff having been the legally full owner, the learned Court has dismissed her claim for maintenance charges holding it inadmissible in law.
Moreover it does not appear that the decree and judgment, the pleadings and issue of Title Suit (No. 13) of 1945 have been filed in this case and marked as exhibits. So, it cannot be said hat the present suit is barred by res judicata in view of the decision in Title Suit (No. 13) of 1945. The issues in the present suit were not apparently the issue in that suit, nor has it been contended by (Mr. Roy) that the present suit is barred by res judicata in view of the decision in that suit.
8. Now coming to the Title Suit No. 14 of 1950, which was originally Pauper Suit No. 34 of 1948, I find a prayer for delivery of khas possession after declaration of the plaintiff's title in the properties left by Paju Pal and for determination that the plaintiff was the Shebait of the Debuttar properties for delivery of possession after removing the defendant of that suit there from and for accounts against the defendant. I do not find any documentary evidence from the records to show that the summons of that suit was served on the defendant Jamini Sundari, rather I find that the decree was passed ex parte. It is contended by Mr. Roy that Ram Dasi at first filed a pauper application in 1948 which was contested by Jamini Sundari and as such Ram Dasi's prayers to file a pauper suit was refused. No documentary evidence is available in support of the contention of Mr. Roy. It further appears that the suit was decreed ex parte on 5th of October 1950 and lamini Sundari died on 17th of December 1950, that is about two months after the ex parte decree.
9. Be that as it may, I am to see whether the issues raised in the present case had been raised there and finally decided by the Court. From the prayer portion as stated above I find that the plaintiff Ram Dasi of Title Suit No. 14 of 1950 did not make any prayer for declaration that schedule (Ka) properties were not Debuttar but Secular properties of Paju Pal and as such the Deities nor the Shebait were called upon to meet that allegation. Only prayer was that Jamini was to be removed from her capacity as executrix and Ram Dasi's title be declared and khas possession be given to her. The second prayer was for removal of Jamini Sundari from the Shebaitship on various allegations and appointment of Ram Dasi as Shebait and the third prayer was for account from Jamini Sundari.
10. The question whether schedule (Ka) properties were Debuttar properties or secular properties of Paju Pal was not directly or substantially in issue in that suit nor does it appear from the ex parte decree Exh. C (2) and there order dated the 5th of October 1950, that Exhs. 1 and 2 were under consideration of that Court. The interpretation of those two documents involves a complicated question of Hindu Law. Furthermore, from the plaint (Exh. 7) it appears that Ram Dasi's claim was based on the decision in Title Suit No. 13 of 1945 and it appears that the Court which decreed the Title Suit No. 14 of 1950 accepted that plea as correct. The suit was decreed ex parte and it was ordered that the plaintiff's case was proved, this far and no farther. So, it appears that whether the schedule (Ka) properties are Debuttar or not were not finally adjudicated between the parties. Furthermore, the plaintiff is not claiming by inheritance from Jamini Sundari but she is claiming her right, title and interest on the basis of Exhs. 1 and 2. She was not a party in Title Suit No. 14 of 1950, and as such it cannot be said that the present suit is barred by res judicata in view of the decision in Title Suit No. 14 of 1950. My observation that Exhs. 1 and 2 were not considered is also supported by the ex parte decree directing rendering accounts in violation of the provision in Exh. 2 that none of the Shebaits named by the testator was accountable to anybody for the income and expenditure.
11. Mr. Roy, the learned Advocate for the appellant, has contended that it appears from the records that the present plaintiff Surebala filed an application for substitution and for setting aside the ex parte decree under Order IX, rule 13 of the Code of Civil Procedure on 6th of January 1951, (vide Exh. C (2). From Exh. D (2), order passed in Miscellaneous Case No. 86 of 1950 dated 12th of January 1951, allowing her petition for sub stitution it appears that summons was directed to be issued and served on the opposite‑party. It does not appear from the records what happened to her prayer for setting aside the ex parte decree. Mr, Roy contends that the plaintiff's prayer for setting aside the ex parte decree passed in Title Suit No. 14 of 1950 was dismissed. Relying on this dismissal Mr. Roy contends that as she got herself substituted and her application for setting aside the ex parse decree was dismissed her present suit is barred by res judicata. I find no substance in this contention of Mr. Roy. In her application for substitution and for setting aside ex parte decree the issues involved in the present suit were not called upon to be raised and decided and as such no question of bar of res judicata arises.
12. It has been contended by Mr. Mesbahuddin the learned Advocate for the respondents that Deities is a minor and that in view of the allegation in the plaint Exh. 7 by Ram Dasi that Jamini Sundari was not fit to be Shebait, rather she was dishonestly misappropriating the properties of the Deities and removing the Deities from the place, the Deities were not pro perly represented and as such any decree passed against the Deities to such circumstances was nothing but a void one and not binding on the Deities and no question of `res judicata' arises. For this proposition of law he has relied on the cases of Subramania Aiyar and others v. Srila Sri Vaithinga Pundara Sunnadhi (133 I C 207); Ponnuswami Pillaf and others v. Subramania Pillai and others (53 I C 412) and the case of Mahesh Chandra Bayan v. Manindra Nath Das and others (45 C W N 508). On the other hand, Mr. Roy the learned Advocate for the appellant, has relied on the cases of Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy (481 A 49); Gora Chand Lurki v. Makhan Lal Chakravarty and others (11 C W N 489); Nagendra Nath Mukerjee and others v. Probal Chandra Mukharjee and another (17 C W N 964); Modhusudun Shaha Mundul and others v. Brae (I L R 16 Cal. 300 (F B)); Viathialings Mudaliar and others v. Srirangath Anni and others (30 C W N 313 (P C)); Lilabati Misrain v. Bishun Chobey and others (6 C L J 621) and the case of Prosunno Kumari Debya and another v. Golab Chand Baboo (2 I A 145).
13. As regards the cases relied on by Mr. Mesbahuddin, I do not intend to express any opinion as I have already held that the present suit is not barred by res judicata. As regards the cases relied on by Mr. Roy, it may be pointed out that most of the cases are in respect of application of `res judicata' in ex parte decrees. But I have already held that the decision in Title Suit No. 14 of 1950 does not operate as a bar to the present suit. Hence I find no substance in the contention of Mr. Roy on the question of res judicata.
14. Then I take up the grounds on the Debuttar properties which have been described in schedule (Kha) of the plaint and are subject‑matter of Exh. 2 Arpannama executed by Paju Pal on the 14th of July 1912. There is no dispute that the schedule (Kha) properties are Debuttar. Only dispute is as to who will be the Shebait under the Arpannama of Paju Pal. The Courts below were of opinion that the plaintiff is the present Shebait under the Arpannama. Mr. Roy contends that Shebaitship devolved on Brajaraj, husband of the defendant No. 1 Ram Dasi Pal and on his death it vested in the defendant No. 1 Ram Dasi Pal as Shebaitship is inheritable under the Hindu Law like other secular properties. For this proposition of law he has relied on the case of Monohar Mukerji v. Bhupendra Nath Mukerji (I L R 60 Cal. 452 (F B)); Ganesh Chunder Dhur v. Lal Behari Dhur and others (63 I A 448); Lala Gowri Sunkar Lal and others v. Janki Pershad and others (17 I A 57); and the case of Kandarpa Mohan Gossain v. Akhoy Chandra Bose and another (58 C L J 445).
15. It has not been contended by Mr. Mesbahuddin that Shebaitship is not property and not inheritable and I do not find any reason to differ from but the authorities relied on by Mr. Roy shall not alone determine the question but the provisions of Exh. 2 shall have to be looked into and considered.
16. From Exh. 2 I find that Paju Pal appointed himself as the first Shebait of the Debuttar properties and after him two other persons, namely, his widow Hara Sundari Dasya and the widow of his predeceased adopted son Brindaban who were to be Shebait successively one after another for their life and thereafter a son, who may be adopted by Jamini the widow of Brindaban on the authority given to her by her husband with the rider." namely down; to his male heirs. Paju had been the Shebait only for about 13 days as he died on the 27th of July 1912 and Hara Sundari Paju Pal's widow became the second Shebait. Jamini Sundari did not adopt Brajaraj during the life‑time of Paju Pal but adopted Brajaraj about 8 years after the death of Paju Pal's Brajaraj was adopted on 8th of July 1920. Thereafter Hara Sundari died on March/April 1915 and Jamini Sundari became the third Shebait. Brajaraj predeceased his adopted mother Jamini as Brajaraj died in May 1943 and Jamini Sundari Dasya died on 17th of December 1950.
17. Now the question is whether Brajaraj could have inherited Shebaitship though Brajaraj predeceased the third executrix. According to the Arapannama (Exh. 2) the right of Shebait did not and could not have vested in Brajaraj before the death of Jamini as the legacy did not become payable before the death of Jamini. Consequently, the defendant Ram Dasi could not have inherited anything from her husband Brajaraj
18. Mr. Roy contends that more than one life‑interest cannot be treated under the Hindu Ldw and as Brajaraj was alive at the death of Paju Pal by fiction of law and at the death of Hara Sundari Shebaitship vested in Brajaraj though he was adopted on 8th of July 1920. No authority has been cited nor any provision of law has been shown to me in support of first part of the said contention but it has been contended that once Brajaraj was adopted he was deemed to be alive at the death of his adoptive father, namely, Brindadan and consequently at the time of death of Paju Pal and as such the Shebaitship vested in Brajaraj and after him his widow Ram Dasi inherited. I have already stated that according to the provisions of Exh. 2 no right could have vested in Brajaraj before the death of Jamini Sundari on 17th of December 1950, and as he pre‑deceased her by about more than 7 years Brajaraj did not obtain the legacy as contended by Mr. Roy. So the claim of Ram Dasi is not maintainable.
19. As to the contention of Mr. Roy that life‑estate for more than one cannot be created, I find it untenable. Under the Hindu Law a Hindu may create a life interest or successive life‑estates (see section 38 of the Mulla's Hindu Law, 11th edition and the case of Tagore v. Tagore (I A Sup. Vol. 47) and the case of Turokessur Roy v. Soshi Shikhuressur Roy (I L R 9 Cal. 952 corr. to I A 51).
20. In the latter case it was held by their Lordships of the Privy Council:
"the gift over was to persons alive, and capable of taking on the death of the testator, to take effect on the death of a person or person also then alive, and was competent, according to the authority of Sremutly Soorjeemonee Dossee v. Denobundhoo Mulick as explained in the Tagore case. For that reason above given it could/only confer as estate for life."
21. Accordingly I hold that creation of successive life estates in favour of Paju Pal, Hara Sundari and Jamini Dasy was valid and that Brajaraj did not inherit Shebaitship on the death of Paju Pal or Hara Sundari. He could have inherited after the death of his adopted mother but as he died before her and before the inheritance open neither he nor his widow Rata Dasi did inherit Shebaitship.
22. Now the question is whether the plaintiff took Shebaitship. I have already referred to the provisions in the Arpannama (Exh. 2), which provides for appointment of Shebait. The further relevant portion of the Arpannama for determination of the plaintiff's right is as follows: --‑
"If the said Jamini Sundari Dasya does not adopt any son or dies before the adoption then Sremati Surebala Dasya daughter of my said adopted son Brindaban Chandra Pal and in her absence her children and grand‑children will perform the worship and service of the said Deities with the income of the said properties as Shebait."
23. Referring to the aforesaid provision in the Arpannama 'Exh, 2) it is contended by Mr. Roy that as Jamini Sundari adopted Brajaraj her daughter Surebala could not inherit Shebaitship and as such it reverted back to the heirs of Paju Pal. It appears that in any case, widow of a grand son is not an heir of the grand‑father‑in‑law in the Hindu Law (Dayabhaga) but a son's daughter's son may be an heir. After going through this document, I am inclined to hold that the intention of the was that in case there was no adoption as aforesaid or in case the adopted son died childless then Shebaitship will devolve on his grand‑daughter Surebala and her children and grand‑children down ward. This view of mine finds support from paragraph 6 of Exh. 1, the will where it has been provided that if the testator's daughter‑in‑law one of the executrix does not adopt or the adopted son died childless the secular properties of Paju Pal will devolve on the deities and the widow of the adopted child will get maintenance out of the income of the said properties. Relying on this provision the defendant No. 1 and Ram Dasi Pal instituted the aforesaid Title Suit No. 13 of 1945 for main tenance but the same was dismissed. Hence I hold that on the death of Jamini Sundari Shebaitship devolved on Surebala who was alive at the death of Paju Pal and was capable of taking on the death.
24. As regards the contention of Mr. Roy that by this Arpannama a new line of succession in violation of the Hindu Law has been created, I do not find any substance because Shebaitship did not vest in Brajaraj but it vested in the plaintiff as Brajaraj died before he could have obtained right of Shebait ship.
25. The other question on the effect of adoption on inheri tance does not arise in this connection in view of the aforesaid decision by me on devolution of Shebaitship. However this question will be dealt with below in another connection.
26. By para. 3 of Exh. 1, will of Paju Pal, it has been provided that in the absence of the testator Paju Pal all his immovable properties will devolve absolutely on the adopted son to be adopted by Jamini Sundari Dasya widow of his adopted on Brindaban in accordance with the permission given to her by his adopted son Brindaban.
27. By para. 4 Hara Sundari Dasya widow of the testator and Jamini Sundri Dasya were appointed executrix to continue as such till the son to be adopted as stated above attained the age of 18.
28. By para. 6 it has been provided that if the testator's daughter‑in‑law Jamini dies before adoption or if she adopts a son but he dies before marriage or if the adopted son marries but dies childless in that case the properties will devolve on the deities placed by him.
29. I have already noted that Brindaban the adopted son of Paju Pal died on 20‑5‑1912, that after the death of his son Brtndaban Exhs. 1 and 2 were executed by Paju Pal on 14‑7‑1912 that shortly thereafter the testator died on 27‑7‑1912 and that Brajaraj husband of the defendant was not adopted by Jamini Sundari during the life‑time of the testator but on 8‑7‑1920, that is about 8 years after the death of the testator.
30. Now the question is whether vesting of right in the deities could be kept in obeyance for indefinite time and whether Brajaraj inherited the secular properties of Paju Pal by virtue of Exh. 1. This calls for a consideration of some of the provisions of the Succession Act and that of Hindu Law.
31. According to section 124 of the Succession Act which provides:
"Where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable."
Brajaraj could not have taken the legacy as no time was men tioned in the will for the occurrence of the uncertain event, namely adoption of Brajaraj by Jamini Sundari and as the same did not happen during the life time of Paju Pal the testator but happened about 8 years after the death of the testator and accordingly in view of the provisions of section 181 of the Succession Act, which is as follows:
"(1) A bequest may be made to any person with the con dition superadded that in case a specified uncertain event shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person."
the legacy went to the deities.…
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