BASANTA KUMAR CHOWDHURY Vs. MADAN MOHUN CHOWDHURY

JUDGEMENT

(1.) This appeal is preferred by the plaintiff from the judgment and decree of the District Judge of Dinajpur, dated the 6th April 1915. The appeal turns on the terms of a document described as an ekrarnama or brithinama, under which the plaintiff claims that he is entitled to receive an annual payment of Rs. 150 from the defendant. It appears that the plaintiff and the defendant are uterine brothers. The defendant was adopted by the plaintiff s uncle. The uncle died in the year 1291 (1884), leaving his property by Will to the defendant who was at the time a minor, The defendant came of age in 1890; and if; may be accepted, as the Courts below have found, that the plaintiff managed the defendant s estate from the year 1890 to the year 1898. It is not found that the plaintiff in so doing acted at the request of the defendant. Apparently the defendant was living with his natural family and the plaintiff as kartha managed the defendant s property along with other property belonging to the family. In 1898 the defendant took the management of his estate into his own hands and the agreement on which the suit is based was executed in March of that year. The plaintiff asserts that since then he has received the allowance regularly up to the close of the year 1315. There is, however, some controversy as to that, and neither Court has recorded an express finding upon the point. Both Courts, on the other hand, have found that the agreement was not induced by any undue influence or pressure on the part of the plaintiff. The suit is to recover the amount said to be payable for the years 1316 to 1319. The first Court decided in favour of the plaintiff, while the learned District Judge in the lower Appellate Court has taken a different view and dismissed the suit.

(2.) The document in question is addressed by defendant to the plaintiff and begins with the following recital: That you are my full brother and elder to me: then my father having given me in adoption to the late Umakanta Chowdhury, I, as his adopted son, have become the owner by inheritance of all the properties left by the late Umakanta Chowdhury and I am in possession thereof. After the death of the said Umakanta Chowdhury and during my minority you have looked after me and my estate and by proper management thereof you have increased the income of my properties and have improved them and at the present time also you have been doing acts beneficial to my interest." Then follows an important sentence: "I have been very much benefited by the works done by you and there is possibility of more good being done by you in future." The document continues: In consideration of those benefits I, actuated by my own sense of duty, promise to grant you for your enjoyment a lifelong annuity of Rs. 150, etc." The defendant further promised that should he die during the plaintiff s lifetime, then his heirs or legal representatives would continue to give the plaintiff the aforesaid annuity in the same manner, The rest of the document need not be referred to.

(3.) The District Judge has held, in his own words: That the expectation of benefits to come was a substantial part of the consideration and that it was not the intention of the executant that a person in whose favour the deed was executed should continue to draw the allowance even after he had ceased, for any reason, to manage the estate." That view appears to be founded on a construction of the document which cannot perhaps be supported in its entirety. The document must be construed as it stands and an intention not expressed cannot be imported into it. However that may be, I agree with the conclusion at which the District Judge has arrived.