George Rankin, J. -
(1.)THE parties in this case are governed by the Dayabhaga. THE appeal is brought by the plaintiffs whose suit, instituted on September 20, 1930, in the Court of the Subordinate Judge at Dacca, has been dismissed by the trial Court (April 20, 1932), and by the High Court (January 17, 1936). THE plaintiffs are the mother, widow and son of Matilal Das who died on October 24, 1925, and between them they represent his estate. THEy claim that Matilal in 1918 succeeded to the whole estate of his uncle Sasi Mohan who had died unmarried on October 1, 1865. THE plaintiffs' case is simply that on the death of Sasi Mohan his mother Shyam Peary succeeded to his property for the estate of a Hindu mother, and that on her death (November 16, 1918), Matilal was the nearest reversioner to Sasi 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 Sasi Mohan, but they say that Brinda Rani Dasi, defendant No. 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. Brinda Rani is the only child of Radhika Mohan surviving at the date of the suit, and she represents his estate. Madhusudan Das = Shyam Peary (d. 12-4-1865) (d. 16-11-1918) : : : : : Mohini Mohan Radhika Mohan Lal Mohan Kshetra Mohan Sasi Mohan (d. 1896) (d. 1878) (d. 1885) (d. 1898) (d. 1-10-1865) : = _____ : : : = __________ = widow Priamoyee : widow Govinda (d. 1902) = Rani (d. 1920) Radharani : (plff. 1) __________________ : :: Krishna Preyashi Brindarani : : (d. 22-5-1930) (deft. 1) Matilal = Brojomohini: Sons : Sons (d. 24-10-25) |(plff. 2)defts. 2-6 defts. 7-12 Ajit KumarDas (minor)(plff.3)
(2.)THERE is little room for dispute as to the facts. Madhu Sudan Das was possessed of considerable property and a money-lending business. He died on April 12, 1865, leaving him surviving five sons of whom Sasi Mohan was the youngest. By his will dated November 24, 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 Madhu Sudan, Sasi Mohan died an infant and unmarried; whereupon his mother Shyam Peary succeeded to his one-fifth interest (three annas four gandas) in his father's estate. The eldest of the sons, Mohini Mohan, managed the various properties left by Madhu Sudan, but, some questions having arisen between him and his three brothers, an agreement in writing dated December 7, 1875, was entered into by all four. This document ignored the mother's right to one-fifth of the property as representing Sasi 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 September 29, 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 September 29, 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. 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 one-fifth share of Sasi Mohan (in his father's property) became extinguished so as to vest Sasi 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 moneylender, trader and Zemindar, and by caste Barendra Saha. 6. 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 the 8th Agrahayan 1262 B.S. that the immovable and movable 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 movable and immovable properties left by him. In the meantime, owing to bad luck, your youngest brother, born of my womb, namely Sasi Mohan Das died unmarried on the 16th 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 life-time; I having accordingly applied for obtaining a certificate under Act 27 of 18S0, 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 son, 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 the 14th Aswin, 1284 B.S. To, The worthy of remembrance Sreejukta (worm-eaten-Shyam Peary Dasya, widow of late Madhu Sudan Das inhabitant of (?)) Sabjimahal, Police station Sadar, District Dacca, by caste Barendra Saha, by occupation money-lender, trader and Zemindar etc. I, Mohini Mohan Das, son of the said late Madhusudan Das, inhabitant of the same place, by caste and by occupation as above, do hereby execute this Ekrarnama-patra (agreement) to the effect following: That my father, the late Madhu Sudan Das having died on the 1st Baisakh 1272 B.S. leaving him surviving five sons, namely, myself, Radhikamohan), Lalmohan, Kshetra Mohan and Sasi Mohan Das and two daughters, namely Gangamoni and Jamuna Dasya and a widow, viz., yourself and providing, by a Will dated the 8th Agrahayana 1262 B.S., that the immovable and movable properties left by him should be possessed, enjoyed and managed by the eldest son in succession, I being his eldest son, made an application before the District Judge of Dacca under Act 27 of 1860, according to the terms of the said Will, and obtained a certificate, and have been possessing, enjoying, managing and acting as Karta in respect of all the immovable and movable properties left by him. In the meantime, owing to bad luck, my youngest brother, born of your womb, namely, Sasi Mohan Das died before his marriage on the 16th Aswin 1272 B.S. I and my other brothers are the absolute owners of the (properties of) the said deceased (brother) but as under the Sastras, you are entitled to a right of enjoyment of the share left by our said deceased brother, for your life, you made an application to the District Judge of Dacca for obtaining a certificate under Act 27 of 1860 in respect of the said share, and your prayer in that behalf having been rejected up to the Hon'ble High Court, under the provisions of the said Will, all the properties have remained in my possession and enjoyment as well as under my management. Without remaining satisfied with that order, under the evil advice of mischievous persons, you are expressing1 a desire for instituting a regular (title) suit in Court for (worm-eaten) of the son ; in that case the properties will be ruined on account of heavy expenditure and both will suffer mental pain and nobody can say what would be the ultimate result. Whereas, in father's Will, there is permission for maintaining you and the sisters, so long as we are capable, and whereas you have by a Nadabi (deed of release) renounced all claims and demands regarding the enjoyment of the share left by the deceased brother Sasi Mohan, for your life, and have desired to receive a sum of Rs. 150 (one hundred and fifty rupees) in lump per month, from the present month up till the end of your life, out of the share of the said deceased brother-I, under the terms of the Will of my deceased father, and on the strength of my position as Karta of the estate left by him, of my own accord and in full possession of my senses, execute this Ekrarnama and provide that so long as you live, you shall get a sum of Rs. 150 (one hundred and fifty rupees) in lump per month, out of the said share; you shall not be entitled to give away or sell the same to any one. Myself or the persons acting as Karta after me shall pay up the said money to you every month ; if we fail to pay up the same then you shall be entitled to realise the same from the share left by the said deceased brother, by suing for the same in Court; any objection to this either by myself or by my representatives shall not be entertained. To this effect, I execute this Ekrarnama. Finis. Dated the 14th Aswin, 1284 B.S.
(3.)ON June 26, 1878, Radhika Mohan died, leaving a widow, Govinda Rani, and two daughters ; so the widow succeeded as his heiress. Thereafter, the three surviving brothers and Govinda Rani, without dividing the properties, were possessed each of one-quarter share of the whole estate left by Madhu Sudan, until in 1881 Kshetra Mohan transferred his quarter share to his eldest brother, Mohini Mohan. In 1881, Govinda Rani sued her late husband's three brothers (suit No. 73 of 1883 in the Court of the Subordinate Judge of Dacca) alleging that Kshetra Mohan's share had been purchased by Mohini Mohan on behalf of and with monies belonging to himself, Lal Mohan and Radhika's estate. ON July 9, 1885, her suit was compromised : it was decreed that Govinda Rani's share of Madhu Sudan's estate should be one-quarter, that is, that the release by Shyam Peary of her right to inherit from Sasi Mohan had vested one-quarter of Sasi Mohan's fifth in Radhika Mohan, and that Govinda Rani was liable to pay one-quarter of the monthly allowance of Rs. 150 payable to Shyam Peary; but Govinda Rani's claim to participate in the purchase of Kshetra Mohan's share was not sustained by the decree.
At the same time another suit was being prosecuted in the same Court (suit No. 85 of 1883) having been brought on September 28, 1883, by Shyam Peary against her three sons and Govinda Rani to recover arrears of her monthly allowance of Rs. 150 out of the estate of Sasi Mohan on the basis of the ekrarnama of September 29, 1877, executed by Mohini Mohan. The suit succeeded as against all the defendants both in the trial Court (April 25, 1885) and on appeal (June 2, 1886), Shyam Peary obtaining a decree to recover Rs. 5,837 and certain costs out of the properties mentioned in the schedule to her plaint, that is, a decree to enforce her charge upon the estate of Sasi Mohan.