Pottu Kumari Bibi v. Nirmal Kumar Singh Nowlakha — 1941 DIGILAW 280 (CAL)

JUDGMENT Mitter, J. - Rai Dhanpat Singh Nowlaksha died in the year 1914. He was survived by his widow Srimati Pattu Kumari Bibi, two sons and four daughters. Both the sons died shortly after his death, and Pattu Kumari on the basis of a power of adoption given to her by her husband, adopted the Plaintiff Nirmal Kumar Singh Nowlaksha on the 28th April, 1918. The Plaintiff Nirmal Kumar was then a minor. It is said by Pattu Kumari that sometime in the year 1919 Nirmal attained majority. On the 2nd December, 1919, two ekrars were executed, almost on the same terms, one by Nirmal Kumar in favour of Pattu Kumari and the other by Pattu Kumari in favour of Nirmal, the Plaintiff. These ekrars recited that Nirmal Kumar had received on attaining majority all the movables, jewelleries and other valuables which his adoptive father Rai Dhanpat Singh had left. All the immovable properties were made over to the management of Nirmal Kumar, only certain items of immovable properties were kept in the possession of Pattu Kumari apparently on the ground that they were her stridhan properties. In 1922, the Plaintiff was married to a daughter of a neighboring landlord namely, Maharaj Bahadur Singh of Baluchar. On the 1st May, 1922, another ekrarnama was executed by Nirmal Kumar in favour of his adoptive mother Pattu Kumari. This ekrornama confirmed the ekrarnamas of the 2nd December, 1919, but clarified Pattu Kumari's position with regard to the immovable properties she retained in her possession in terms of the first mentioned ekrarnamas. 2. It appears that later on there were disputes between the mother and the son and those disputes were referred to the arbitration of two persons, Suchanti and Bhuturia. The reference to arbitration was executed by Nirmal Kumar and Pattu Kumari on the 12th January, 1924, and thirteen matters in dispute were referred to arbitration. We are here concerned with what was the subject-matter of paragraph 9 of the said reference, Exhibit 6, printed at page 1, Part II of the Paper-Book in F.M.A. No. 50 of 1937. That paragraph runs as follows:-- The arbitrators will decide as to the ownership of the jewellery and gold and silver ornaments, utensils and articles, etc., and cash money, sovereigns and mohure, etc., which are with Srimati Pattu Kumari Bibi Saheba and they will make arrangements for their protection and preservation. 3. That paragraph runs as follows:-- The arbitrators will decide as to the ownership of the jewellery and gold and silver ornaments, utensils and articles, etc., and cash money, sovereigns and mohure, etc., which are with Srimati Pattu Kumari Bibi Saheba and they will make arrangements for their protection and preservation. 3. The arbitrators made their award on the 13th January, 1924. It is printed at page 11, Part II of the same paper-book. In paragraph 9 of the award they dealt with this matter in the following manner: The jewellery and gold and silver ornaments and utensils, and other articles and cash, sovereigns, mohurs, etc., which are new with Srimati Pattu Kumari Bibi shall remain hers; she will not be entitled to give away, sell or in any way transfer the same. On her death Babu Nirmal Kumar Singh Nowlaksha shall get all those movable properties. The said properties are not her Stridhan and shall not be treated as Stridhan. 4. Neither in the application for reference to arbitration nor in the award, any list of the ornaments and utensils, etc., which were then in possession of Pattu Kumari was given. But the admission made by the Defendant Pattu Kumari in this suit in the lower Court, and repeated by Mr. Bose appearing on her behalf in this Court, has relieved us from deciding what those ornaments and articles were. The admission is that those ornaments and articles which were in her possession at the time of the reference are those mentioned in Schedule Kha to the plaint, and paragraph 13 of the written statement of Pattu Kumari except items Nos. 40, 44 and 47 of the jewellery and ornament list, and items Nos. 5, 23, 33, 38, 40, 41 and 43 to 46 of the list of silver articles as given in Schedule Kha of the plaint. 5. In 1924, Pattu Kumari had still a daughter to marry for which a provision was made in the award. We do not know the exact date of the marriage but the evidence is that it was in or before the year 1926. By the award an apartment was set apart for Pattu Kumari from the rest of the house at Azimgunge. That apartment contained a strong room which had been in existence from the time of Rai Dhanpat Singh. We do not know the exact date of the marriage but the evidence is that it was in or before the year 1926. By the award an apartment was set apart for Pattu Kumari from the rest of the house at Azimgunge. That apartment contained a strong room which had been in existence from the time of Rai Dhanpat Singh. After her daughter's marriage, Pattu Kumari left for Calcutta in 1926 and lived there for the most part. Up to 1929 or so, occasionally she went to her Azimgunge residence. But from 1929 till the 7th August, 1936, the evidence is that she never went to Azimgunge. On the 7th August, 1936, after a period of about seven years' continuous stay in Calcutta and other places she returned to her Azimgunge house. On the 17th August, 1936, an information was lodged at the Ziagunge Police Station which is very near to Azimgunge reporting theft of jewelleries and other valuables said to have been stored in the strong room within her separate apartment. It was stated that the theft was during her absence from Azimgunge, and it was discovered on the 10th August, 1936, by her quite accidentally. The Police ultimately reported that the said information of theft was a false one. 6. On the 13th February, 1937, the present suit was instituted by Nirmal Kumar against Pattu Kumari. We are not concerned in this appeal with all the prayers made in that plaint. The substance of the plaint is that all the jewelleries and other valuable movable properties which belonged to Rai Dhanpat Singh Bahadur are in the custody of the Defendant. According to Nirmal Kumar the said properties are as are given in Schedule Ka of his plaint; and the properties described in Schedule Kha are some of the items of the properties described in Schedule Ka and they are the items about which Pattu Kumari reported to the police, as having been stolen from her strong room at Azimgunge. According to Nirmal Kumar the said properties are as are given in Schedule Ka of his plaint; and the properties described in Schedule Kha are some of the items of the properties described in Schedule Ka and they are the items about which Pattu Kumari reported to the police, as having been stolen from her strong room at Azimgunge. His further case is that he has the right to those properties mentioned in Schedule Ka though under the terms of the award Pattu Kumari is entitled to have their custody during her life-time, that with a view to deprive him of those properties, Pattu Kumari in collusion with two of her sons-in-law falsely reported that those properties had been stolen, and that her conduct makes it unsafe to keep them in her custody any more. He accordingly prayed for an appointment of a Receiver for the preservation of those properties and for the protection of his rights. 7. In the suit, the defence that is material to this appeal was that Pattu Kumari denied the very existence of some of the items of Schedule Ka. She stated that she had made over in 1919 all the jewelleries and valuable movable properties left by Rai Dhanpat Singh Bahadur to the Plaintiff Nirmal Kumar when he attained majority, that the properties mentioned in Schedule Kha were her own stridhan properties, and that in any case they were not in existence at the time of the suit, they having been stolen away with the connivance of Nirmal Kumar sometime before the 10th August, 1936, from the strong room at Azimgunge during her absence from that place. 8. The learned Subordinate Judge has come to the conclusion that the Plaintiff has not been able to prove that all the items in Schedule Ka were the movable properties left by Rai Dhanpat Singh and were in the possession of Pattu Kumari. He has also come to the conclusion that the properties mentioned in Schedule Kha and in paragraph 13 of the written statement of the Defendant were in the possession of Pattu Kumari, after she had made over the jewelleries, and other valuables to Nirmal Kumar in 1919, and that the items mentioned in Schedule Kha except items Nos. 40, 44 and 47 of the list of jewellery and ornaments and items Nos. 40, 44 and 47 of the list of jewellery and ornaments and items Nos. 5, 23, 30, 38, 40, 41, 43 to 46 of the list of silver articles, etc., of Schedule Kha, were the subject-matter of the award as contained in paragraph 9 of the award, but the rest was not. This finding proceeded upon the admission of the Defendant made in the lower Court. It was further found on the admission of the Defendant that the said items were in her possession till the alleged theft. He recorded a further finding that the story of theft was a false one and had been invented by Pattu Kumari in conjunction with her advisers for the purpose of making away with the ornaments to which the Plaintiff had been given a right under paragraph 9 of the award. On the said material findings the learned Subordinate Judge decreed the suit in part. The order runs as follows: The Defendant is declared to be in possession of some of the valuables of the Nowlaiksha estate mentioned in Schedule Ka to the plaint, viz., those mentioned in Schedule Kha except items Nos. 40, 44 and 47 of the list of jeweller and ornaments and items Nos. 5, 23, 30, 38, 40, 41, 43 to 40 of the list of silver articles, etc, of that schedule, and of the admitted valuables mentioned in paragraph 13 of the written statement, under the terms of paragraph 9 of the award of 1924. It is also directed that a [Receiver be appointed for taking charge of the aforesaid valuables except the articles of daily domestic use, for their safe custody and preservation, on such terms as the Court may think fit and proper. 9. Mr. Bose on behalf of the Defendant Appellant raised three points before us. It is also directed that a [Receiver be appointed for taking charge of the aforesaid valuables except the articles of daily domestic use, for their safe custody and preservation, on such terms as the Court may think fit and proper. 9. Mr. Bose on behalf of the Defendant Appellant raised three points before us. He says that the Plaintiff is not entitled to any relief, inasmuch as (1) those properties mentioned in the ordering portion of the judgment of the learned Subordinate Judge and which are the properties dealt in paragraph 9 of the award are not estate properties, that is to say, properties left by Rai Dhanpat Singh Bahadur, and they are the personal properties of the Defendant; (2) even if it be found that the Plaintiff has any right in those properties, he cannot get any relief inasmuch as the said properties are no longer in the possession or control of the Defendant, they having been stolen by an unknown and untraced thief; and (3) in any case no receiver ought to be appointed, nor any order made for the preservation of those properties which would prevent his client the Defendant from having possession and enjoyment of the same. 10. We do not see our way to give effect to Mr. Bose's contentions except in one respect which we shall indicate hereafter. It was admitted in the lower Court, and that admission is accepted by Mr. Bose that the jewelleries and other articles mentioned in the ordering portion of the learned Subordinate Judge's order were the subject-matter of paragraph 9 of the award. It is not necessary to decide in view of the terms of the award whether those properties were the properties left by Rai Dhanpat Singh Bahadur or not. Whatever may have been the rights of the two parties to this litigation in respect of the same before 1924, those rights were defined in paragraph 9 of the award itself. It was within the competency of the arbitrators to decide the question about the ownership of those movables, for that was one of the express items in the reference. This award has terminated in a decree. Paragraph 9 of the award defines the rights of the Plaintiff to those movables, vis-a-vis the Defendant Pattu Kumari. It was within the competency of the arbitrators to decide the question about the ownership of those movables, for that was one of the express items in the reference. This award has terminated in a decree. Paragraph 9 of the award defines the rights of the Plaintiff to those movables, vis-a-vis the Defendant Pattu Kumari. The plain meaning is that Pattu Kumari shall have a life interest in them, and the remainder will be in her son Nirmal Kumar and on her death, and then only, Nirmal shall have the right to possess and enjoy them. She has been given a right to those ornaments because it is stated that those ornaments and jewelleries will be hers; but at the same time the award says that those jewelleries and other articles were not her stridhan and would not be regarded to be her stridhan. The award further provides that she shall have no right to make a gift, sell or otherwise transfer the same. The right which was given to her by the award was a limited right, not an absolute one, a mere life estate with a vested remainder in favour of Nirmal Kumar. This is our construction of paragraph 9 of the award. 11. With regard to the story of theft we agree with the finding of the learned Subordinate Judge. The movables in respect of which the alleged theft is said to have been committed were very valuable. They are worth about Rs. 1,50,000. The lady Pattu Kumari left for Calcutta in 1926, apparently with the intention of making Calcutta her permanent residence. She made short stays at the Azimgunge house for short periods, during the first few years, but after 1929 she did not go there on a single occasion, till she returned in August, 1936. It is highly improbable that she would leave valuable jewelleries and other valuable properties of the value of about Rs. 1,50,000 in the strong room of an unoccupied house under the care of one guard only. Apart from this there is positive evidence which the learned Subordinate Judge has believed, and we see no reason to differ from him, namely, the testimony given by the two ladies Golap Kumari and Daksha, that the said jewelleries and ornaments, if not all but at least a good portion thereof, had been removed by Pattu Kumari from Azimgunge years before the alleged theft. Golap Kumari who is aged eighty is a near relation of the parties, and she has no interest in the litigation. Her deposition is that four years before her deposition, i.e., in 1934, Pattu Kumari was staying at Giridi. Golap Kumari went to Giridi and stayed with her for some days and then went to Parashanath hills on a pilgrimage. At Giridi while she was staying with Pattu Kumari, in answer to her question Pattu Kumari admitted that the jewelleries and ornaments which were in her possession had been taken away by her from Azimgunge and deposited with her daughters. The other lady Daksha said that about the same time, that is a few years before 1936, she had actually seen some of the ornaments at the Calcutta house where Pattu Kumari was then residing. There are other circumstances which also lead us to the conclusion that the theft was staged by Pattu Kumari or her advisers, and a false information was lodged. Pattu Kumari said that she went to Azimgunge on the 7th August, 1936, lived there for three days and she had no suspicion that any body had entered the room next to her bed-room where the strong cage was located. On the morning of the 10th August she wanted to have her handkerchief and for that purpose entered the adjoining room and found some almirahs broken and that raised her suspicion. She went to the strong room and found the iron cage broken and all the contents taken away. The door leading from her room into the room where the strong cage had been placed was not tampered and the lock was unbroken. It was difficult for a thief to enter except through that door, because that was the only connecting door, or he could have entered by removing a window. No window was removed and there is no evidence that there was any sign of removal of a window, or replacement of the same after the theft had been committed, in its proper position. A suggestion was made to that effect but that suggestion is not supported by any evidence nor can it bear scrutiny. No window was removed and there is no evidence that there was any sign of removal of a window, or replacement of the same after the theft had been committed, in its proper position. A suggestion was made to that effect but that suggestion is not supported by any evidence nor can it bear scrutiny. If a thief had entered the strong room by removing a window, after removing the valuables he would not remain there for replacing the window in its proper position, and repair the damage to the wall which would be caused by the removal. What is most suspicious is that although jewelleries and ornaments of the value of about Rs. 1,50,000 were said to have been stolen away during her absence, no first information was lodged immediately after the discovery of the theft. It was lodged seven days after the alleged discovery after the two sons-in-law Nahar and Kuthari had been brought over to Azimgunge. We accordingly do not see our way to differ from the Subordinate Judge in his finding that there was no theft in fact, but a story of theft was started and a false information was given with the evident object of depriving the Plaintiff of the jewelleries and the ornaments in which he had been given a vested remainder by paragraph 9 of the award. This leads to the consideration of the third point raised. 12. In our judgment the owner of a lifetenant owes a duty to the remainder man to see that the subject is preserved for the remainder man. As a life-tenant he has the right to possess and enjoy, reasonable wear and tear during the possession being excepted. He has a duty to preserve the property in such a manner that it may be taken over after his death by the remainder man. If there is a breach of this duty, or facts are established which will lead the Court to say that there is a reasonable apprehension on the part of the remainder man, that this duty which the life-tenant owes will not be performed by the life-tenant, he, the remainderman, is entitled to ask the Court to protect his right by making suitable orders for the protection and preservation of the subject during the life-time of the life-tenant. He is not entitled to immediate possession, because the estate of the life-tenant intervenes. He is not entitled to immediate possession, because the estate of the life-tenant intervenes. In our judgment, it is a fundamental principle that the remainder man is entitled to have suitable orders from the Court for the preservation of the property from negligence, mis-deeds or fraudulent designs of the life-tenant. The case of the right of a reversioner to have the estate protected by the appointment of a Receiver while a Hindu widow is in enjoyment, is only a manifestation of the principle which we have formulated above. So far as the interest of the remainderman who has got a vested interest, is concerned it is more substantial than the interest of a Hindu reversioner, for the interest of a Hindu reversioner is only a mere expectancy. There are cases where Receivers have been appointed over the estate at the time when it was in the possession of a Hindu widow, at the instance of a reversioner, when actual acts of waste were proved to have been committed by the Hindu widow. The true principle seems to be this : that if a reversioner satisfies the Court that a Hindu widow has the intention to commit an illegal act, that is to say, an act which would prejudice the interest of the reversioner, he is ordinarily entitled to an order of Court appointing a Receiver. The actual acts of waste committed in the past by the widow in possession are only evidence, we should say, items of strong evidence, to prove the intention that the widow will act in an illegal manner in the future. Even if there are no acts of waste committed by the widow in the past, but there is strong evidence which would lead to the conclusion that that is the intention of the widow, the reversioner will still be entitled to have a Receiver appointed. 13. In this case, we have no difficulty in holding that the widow was actuated by a fraudulent intention, an intention to cheat the Plaintiff, the remainder man, by staging a theft. That itself leads us to the conclusion that it would be unsafe to leave the valuable movable properties, in respect of which the learned Subordinate Judge has found in favour of the Plaintiff, in the custody or control of the Defendant. She is a widow, and she will have no occasion to use many of the ornaments. That itself leads us to the conclusion that it would be unsafe to leave the valuable movable properties, in respect of which the learned Subordinate Judge has found in favour of the Plaintiff, in the custody or control of the Defendant. She is a widow, and she will have no occasion to use many of the ornaments. In paragraph 13 of her written statement a list is given of articles and ornaments which she ordinarily uses and have been using since 1926 when she came to Calcutta. This fact we take into consideration in determining what order we should pass for the preservation of the properties during the life-time of Pattu Kumari. No harm would be done to her if all the properties are taken away from her except those which she requires for her daily use, and those have been specified in paragraph 13 of the written statement. 14. We do not think that a Receiver is necessary for the purpose of giving the Plaintiff protection, for there will be nothing to manage. We accordingly pass the following order in modification of the order of the learned Subordinate Judge appointing a Receiver. We declare that the Plaintiff has a vested remainder in those items of movable properties, jewelleries and ornaments, and other gold and silver articles mentioned in the ordering portion of the learned Subordinate Judge's judgment. We find that they are still in the possession or control of the Defendant. We direct that the articles mentioned in paragraph 13 of the written statement be left in the possession of the Defendant during her life-time. But with regard to the rest, the learned Subordinate Judge will appoint a Commissioner and ask the Defendant to produce the said ornaments, and other gold and silver articles in the presence of the Commissioner, who shall make a list of those articles and put the same in a strong box or boxes properly secured and sealed in the presence of the Plaintiff and the Defendant or their representatives. The Subordinate Judge will further nominate a Bank and direct the said sealed box or boxes to be kept in the safe custody of the said Bank in the names of both the Plaintiff and the Defendant with a direction that the safe custody receipt is to be issued in the names of both of them. The Subordinate Judge will further nominate a Bank and direct the said sealed box or boxes to be kept in the safe custody of the said Bank in the names of both the Plaintiff and the Defendant with a direction that the safe custody receipt is to be issued in the names of both of them. The said box or boxes can only be withdrawn during the life-time of Pattu Kumari on the joint receipt of Pattu Kumari and Nirmal Kumar or his legal representatives on his death. After the death of Pattu Kumari, Nirmal Kumar Nowlaksha or his legal representatives, as the case may be, will be able to withdraw the same from the safe custody of the said Bank. If occasion arises, the learned Subordinate Judge will be able to change the Bank in which the said articles are to be kept in safe custody. The Plaintiff must bear the costs that may be incurred for depositing and keeping in deposit the box or boxes containing the said articles, in the safe custody of the Bank, and also all other costs including the insurance fees. 15. With the aforesaid modification in the decree of the Court below, we dismiss this appeal with costs, hearing-fee being assessed at Rs. 300 (three hundred). The cross-objection is not pressed, and is dismissed but without costs.