Authored By : Banerjee, Robert Fulton Rampini

Banerjee and Robert Fulton Rampini, JJ.

1. This appeal arises out of a suit brought by the plaintiffs-appellantsto recover possession of certain Immovable property, on the allegation that,the said property, along with other properties, belonged to one RadhakrishnaChuckerbutty, the maternal grandfather of the plaintiffs; that upon the death ofRadhakrishnas widow in whom they had vested by inheritance, the threedaughters of Radhakrishna, vis, Bishakha, mother of the plaintiffs,Gaganeswari, defendant No. 2, and Subhadra, the wife of defendant No. 1 becamejointly entitled to the same; that Kali Shankar Chuckerbutty, brother ofRadhakrishna, having kept Bishakha out of possession, she brought a suitagainst him and her two sisters Subhadra and Gaganeswari to recover possessionof her share in the properties left by her father; that that suit resulted in acompromise, by which Bishakha and her two sisters obtained certain propertiesto be held by them separately; that subsequently Bishakha died and Gaganeswaribecame a childless widow; and that upon the death of Subhadra, the propertyobtained by her under the terms of the compromise became vested in the (sic)

2. The defence, so far as it is material for the purposes ofthis appear, to the effect that the properties obtained by Subhadra under thecompromise, did not belong to Radhakrishna, and that the plaintiffs are notentitled to claim the same during the lifetime of Gaganeswari, the survivingdaughter of Radhakrishna and of defendant No. 1, who is the heir to Subhadrasproperty in preference to the plaintiffs, her sisters sons.

3. The first Court gave the plaintiffs a decree; but onappeal the lower Appellate Court has reversed that decree, holding that Hindujoint tenants such as widows and daughters, "are incompetent to convert,by mere acts of their own, joint estates into estates of severalty," andthat Gaganeswari was consequently entitled to hold Subhadras share.

4. In second appeal it is contended on behalf of theplaintiffs that the lower Appellate Court is wrong in holding that, under theBengal School of Hindu law, daughters are incompetent to convert their jointestates into estates in severalty; and that it ought to have held that, underthe terms of the compromise, the plaintiffs were entitled to the propertiesleft by Subhadra in preference to Gaganeswari and Subhadras husband. On theother band, it is contended for the defendants-respondents in support of thedecree of the lower Appellate Court, that all that the daughters ofRadhakrishna did under the compromise was only to give up their rights infavour of each other during their joint lives, and that, if it be conceded thatany estates in severalty were created by the compromise in favour of the threedaughters of Radhakrishna, the properties now in dispute did not all belong tohim.

5. We are of opinion that the lower Appellate Court is wrongin holding that, under the Hindu law of the Bengal School, when severaldaughters take a joint estate, they are incompetent to convert that jointestate into estates in severalty. We think that according to the law of theDayabhaga, when several daughters inherit the estate of their father, they arecompetent to enter into any arrangement regarding their respective rights inthat estate, provided that such arrangement does not interfere with the rightsof the reversionary heirs except by way of accelerating their succession. Thisview is fully home out by the law as laid down in the case of the widow, whichis analogous to that applicable to the case of daughters, and also by that laiddown in cases relating to the succession of daughters (see the Dayabhaga,chapter XI, Section 2, paragraphs 30 and 31, and the cases of Janoki NathMukhopadhya v. Mothuranath Mukhopadhya I.L.R. 9 Cal. 580 and Padmamani Dasi v.Jagadamba Dasi 6 B. L. R. 134. We are also of opinion that the respondentscontention that all that the daughters gave up in favour of each other underthe compromise related to their rights during their joint lives is untenable;and we think that what the daughters intended to do by the compromise was tocreate in favour of each an absolute estate in the properties allotted to her,freely alienable by her and descendible to her heirs. How far they werecompetent to do so and how far this arrangement would entitle the plaintiffs tosucceed in the present suit are questions which remain to be considered. Whilsttaking this view of the compromise, we must, on the other hand, say that itdoes not in terms amount to a relinquishment by each daughter of her right ofsurvivorship, so as to make the shares allotted to the other daughters pass onto the reversionary heirs on their death. The petitions of compromise nowheresay that; but, on the contrary, the; distinctly provide that, upon the death ofeach daughter, the properties taken by her, if not alienated by her in herlife-time, should go to her sons, grandsons, etc., that is, to the heirs of herseparate property which must mean her stridhan, though the word stridhan is notused in the petitions. That being so, can it he (sic) though the compromise doesnot in terms entitle the plaintiffs to (sic) state left by Subhadra, still theeffect of the Hindu law, which is to prevent the compromise from taking effectto its fullest extent, is to accelerate the succession of the plaintiffs whoare the ultimate reversionary heirs at the present date in regard to theproperties left by the deceased daughter We are of opinion that this questionmust be answered in the negative. For, we think it was competent to thedaughters of Radhakrishna to come to any arrangement amongst themselves as totheir respective rights which would last during the continuance of thedaughters estate, that is, up to the time of the death of the last survivingdaughter, and that irrespective of the fact whether the last surviving daughterbecame disqualified to inherit after the succession had vested in her and herother sisters jointly. In support of the view that the subsequentdisqualification of a daughter after the succession has vested in her alongwith other daughters does not deprive her of her right to continue to hold thedaughters estate, we need only refer to the case of Amirto Lal Bose, v.Rajonee Kant Mitter 15 B. L. R. 10; 23 W. R. 214. That being so, the estatethat devolved on the daughters of Radhakrishna would not determine until afterthe death of Gaganeswari; and, until that event happens, the arrangement cometo between the daughters, which was assented to by all the daughters, should,in our opinion, remain in operation. This would not in any way interfere withthe rights of the reversionary heirs for the simple reason that those rights donot come into existence until after the death of Gaganeswari. Now, what is theeffect of the arrangement come to amongst the daughters As we have alreadyindicated its effect was to make the properties allotted to each daughterremain her property capable of being alienated by her, and, if not alienated,capable of passing on her death, to the heirs to her separate property asdistinguished from the property inherited by her from her father. In this view,the properties obtained by Subhadra, granting that they were properties which,as the plaintiffs alleged, originally belonged to Radhakrishna, would pass tothe nearest heir to her stridhan, that is, to her husband, defendant No. 1, inthe same way as the properties left by the plaintiffs mother passed to them,not because they were the reversionary heirs of their maternal grandfather, butbecause they were the nearest heirs of their mother. We therefore think thatthe plaintiffs suit has been rightly dismissed by the lower Appellate Court,though upon a wrong ground. The result then is that this appeal fails and mustbe dismissed with costs.

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Kailash Chandra Chuckerbutty and Ors. vs. Kashi ChandraChuckerbutty and Ors. (14.01.1897 - CALHC)