KALIPADA DUTTA AND OTHERS Vs. TARA PADO RAKSHIT AND OTHERS

JUDGEMENT

(1.) The appellants were some of the defendants in the action and the respondents in the court of appeal below. They have come up to this Court against the judgment of reversal. The plaintiff -respondents are heirs of the original plaintiff Girish Chandra Rakshit, who having died, the respondents first set were substituted in his place. The other respondents were proforma defendants in the suit. The facts are short and simple. Shorn of all details, one Jagannath Dutta died leaving behind two wives, the first being Madhubala Dasy and the second Subhadra Bala Dasy. The first wife Madhubala Dasy left behind four daughters, Kripamoyee, Sumitra alias Changi and Bidhumukhi. The sole plaintiff, who had instituted the suit, was one of the sons of Sukhada aforementioned. As has already been stated above, the plaintiff Girish Chandra Rakshit died during the course of this litigation leaving behind he respondents first set in this appeal. From the second wife of Jagannath Dutta, there were two sons and one daughter. The daughter Purnabala Dasy died leaving behind no issue. One son Bishnu Charan left behind two sons. Dwijapadda, defendant no. 3 and Niranjan, defendant no.4; and Kulesh Dutta, who was original defendant no. 1, left behind a son Govind Dutta, Kali Pada. defendant no. 2 and the latter's son Ajit Dutta, defendant no. 5. As has already been pointed out earlier, all these defendants 2 to 5 have been described as proforma defendants. The real contest was between Girish Chandra Rakshit and Kulesh Dutta, defendant no. 1. whose respective heirs are litigating under the same title as their forebearers. Sumitra alias Changi, the daughter from the first wife Madhubala Dasy left behind certain properties to which Girish Chandra Dutta laid claim as the son of Sukhada, who was the own sister of Sumitra as sister's son. On the contrary, Kulesh Dutta, defendant no. 1, the predecessor -in -interest of the present appellants was claiming a rival title and preferential claim to the properties left behind by Sumitra as a step brother. This in a nutshell is the contest between the parties,

(2.) Admittedly the parties are governed by the Dayabhag School of Hindu Law. Admittedly again the property left behind by Sumitra was her Stridhan property. While according to the appellants, the property fell within 'Yautuka' class of Stridhan property, the brother of Sumitra would be entitled to have a preferential claim, the case of the contesting respondents is that the property fell within 'Auautuka' class of Stridhan property.

(3.) There is one more fact which needs to be noticed here. One of the alternative stand of defendant no. 1 in the suit was that Sukhada, the mother of the plaintiff was not the daughter of Jagannath Dutta at all. On this point, the concurrent findings of both the courts below are that Sukhada was the daughter of Jagannath Dutta and own sister of Sumitra. The finding of the final court of fact is that the property which is the subject matter of the suit came to Sumitra as a gift from her father Jagannath Dutta. Evidently, therefore, the court of appeal has rightly proceeded upon the footing that the property which was the subject matter of dispute would be governed by the rules of succession applicable to 'Ayautuka' class of Stridhan property under the Dayabhag School of Hindu Law. That being so, the sister's son is a preferential heir to a step -brother (a brother of half blood) although a, brother of (sic)full blood (uterine) is placed in the hierarchy of succession much above the sister's son.