SARAJUBALA DEBI Vs. JYOTIRMOYEE DEBI

JUDGEMENT

(1.) This is an appeal by the plaintiffs against the judgment and decree of the Subordinate Judge, Fifth Court, Decca, dated 7 June 1926 dismissing their suit. The suit was for recovery of possession of a taluk on the allegation that the plaintiffs were the heirs under the Hindu Law of Raja Kali Narayan Roy who was the original owner of the property. The allegations of the plaintiffs were that the Raja granted a sub-lease of the taluk to his daughter Kripamoyee Devi on certain conditions. The Raja died in 1878, Kripamoyee died on 27 April 1920, without leaving any issue. Under the terms of the lease, Kripamoyee got only a life-interest and on her death without issue, the leasehold interest lapsed and the property has reverted to the estate of Kali Narayan and the plaintiffs are entitled to recover possession of it as his heirs. The defendants claim the property under a will said to have been executed by Kripamoyee and they allege that Kripamoyee had an absolute interest in the property in question and the provisions in the lease on which the plaintiffs purport to base their claim are void. They also raised other questions in defence which it is not necessary to relate now. It is admitted that the plaintiffs can succeed only if after the death of Kripamoyee, the disputed leasehold property reverted to and became part of the estate left by Raja Kali Narayan. The Subordinate Judge, therefore, took up that question only for decision first and decided it against the plaintiffs. If the conclusion of the learned Subordinate Judge is right then the suit will stand dismissed, otherwise the case must be remitted for decision of the other questions raised in the suit.

(2.) The question in controversy depends entirely upon the true construction of the patta granted to Kripamoyee and the validity or otherwise of certain provisions contained in it. There were three documents executed by Kali Narayan in her favour. They are more or less on the same terms. It will be sufficient to take into consideration the last of them dated 5 March 1877. The deed is described as a miras talukdari patta. The relevant portion of it runs thus: I give you patni talukdari patta in respect of my purchased taluk... total annual sadar jama being fixed at Rs. 4,840, without any selami on account of my affection for you. You and your sons born of your womb and sons born of their loins in succession, and the daughters born of your womb, shall continue to possess (the same)... being malak in possession by right of miras talukdari in all the lands and the lands relating to the whole taluk written in the patta by cutting and filling up, by making homestead and orchards, and by being entitled to the right of transfer by sale and gift Excepting the above, the descendants of your daughters, and the adopted sons, etc., in your family, your husband or his wife or the descendants born of her womb or your daughter's husband, etc , or any other heir of any kind will have no right or title to this taluk....God forbid, if you or your heirs aforesaid be ever under the necessity of making a sale or giving in mortgage by way of conditional sale or of giving ijara of kaima miras patta, etc., or of making transfer in any way of the whole or any portion of this taluk then you or they will have to sell the same to me or my heirs at the value of ten times the amount of the realizable rent that may remain after deducting the sadar rent of grant kaimi miras patta in respect thereof and if it be necessary, to give in mortgage by way of conditional sale or grant ijara patta, you will have to do it according to rule , but you will not be able to sell or transfer, as aforesaid, in any way, or mortgage by way of conditional sale or grant ijara or kaimi miras patta, to any other persons, if you or they do or give, the same will be rejected It I or my heir on being requested, fail to purchase, etc., as aforesaid, or do not take in mortgage by way of conditional sale or ijara or kaimi miras lease then you or your heirs, as aforesaid, will be able to put in a petition in Court, by mentioning the terms of this patta, and on the expiry of three months from the date of that petition, to sell or give in mortgage by conditional sale or grant ijara or kaimi miras patta, or transfer in any other way, to that no objection on my part or on the part of my heirs will avail. Further, if you or your heirs, as aforesaid, ever willingly give up your residence in Joydevpur, and, God forbid, if the particular heirs of you, whose rights have been mentioned in the lands of this patta, cease to exist then the terms written in this patta will become inoperative and the taluk will revert to the right of me and my heirs. Finis Dated 23 Falgoon 1283, B.S.

(3.) It is argued on behalf of the appellants that the effect of the words in this document is that at best on absolute estate was given to Kripamoyee defeasible in the event of her dying without issue and in that event the property was to revert to the donor and his heirs. Reliance is placed in support of this contention on the case of Bhoobun Mohini Debia V/s. Hurrish Chundar Chowdhry [1879] 4 Cal 23 and it is contended that the words in the patta in the present case bear a close resemblance to the words in the sanad in the above case and the present patta should be construed in the same manner. I am always reluctant to construe a document with reference to authorities as to how a similar document was construed. The well known lemarks of Sir G. Jessel, M.R. may be referred to in this connexion. Says the Master of the Rolls: I think it is the duty of a Judge to ascertain the construction of the instrument before him, and not to refer to the construction put by another Judge upon an instrument , perhaps similar, but not the same. The only result of referring to authorities for that purpose is confusion and error, in this way, that if you look at a similar instrument, and say that a certain construction was put upon it, and that it differs only to such a slight degree from the document before you, that you do not think the difference sufficient to alter the construction you miss the real point of the case, which is to ascertain the meaniug of the instrument before you. It may be quite true that in your opinion the difference between the two instruments is not sufficient to alter the construotion, but at the same time the Judge who decided on that other instrument may have thought that that very difference would be sufficient to alter the interpretation of that instrument. You have in fact, no guide whatever, and the result especially in some cases of Wills, has been remarkable. Aspden V/s. Seddon [1875] 10 Ch. 334 at. 397 (n).