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2001 DIGILAW 525 (CAL)

Chintamoni Saha v. Keshab Chandra Saha

2001-08-20

SUBHRO KAMAL MUKHERJEE

body2001
JUDGMENT 1. This is a plaintiff's second appeal against a judgment of affirmance. 2. Title Suit No. 583 of 1970 was instituted by the plaintiff in the Court of the learned Munsif, Second Court at Diamond Harbour for declaration of title and for injunction. It is contended by the plaintiff that by an amicable partition with their co-sharers the plaintiff and his brother, Binoy Krishna Saha, exclusively got the suit properties allotted in their favour. On the death of Binoy Krishna, the plaintiff inherited the suit property and became the sole owner thereof. The plaintiff, also, contended that, alternatively, he has acquired a good title by adverse possession. The plaintiff being the old person could not attend the R.S. operations and as such in R.S. Khatian erroneously the name of the defendant No.1 has been entered in column No. 23 in tenancy right. It is contended that the suit property was never auction sold in connection with Money Execution Case No. 86 of 1944 and the title of the plaintiff is not affected by such alleged sale. The defendant No. 1 has no interest and possession in the suit property. 3. The defendant No 1 filed a written statement and contended that Nayantara, the sister of the defendant No.1, was the wife of the Binoy Krishna. Nayantara filed a suit for maintenance being Title Suit No 40 of 1943 and obtained a decree in her favour. The decree was put into execution in Case No. 86 of 1944 and, ultimately, decree-holder, in execution of the said decree, auction purchased the half share of the suit plots along with other lands on March 5, 1945. Nayantara obtained sale certificate from the Court and got possession of the lands through Court. She had been in possession till her death and on her death in 1356 B S., the defendant No.1 had inherited her share in suit property in default of lineal descendant as her sole heir. It is contended that the defendant No.1 has been in possession thereof, paid rents and his name has been duly recorded in the recent R. S. record of rights. 4. By judgment and decree dated December 23, 1974, the learned Munsif, after considering the materials placed before him, decreed the suit in part and declared the plaintiff's title in respect of plot Nos. 4. By judgment and decree dated December 23, 1974, the learned Munsif, after considering the materials placed before him, decreed the suit in part and declared the plaintiff's title in respect of plot Nos. 3989, 5099 and 5116 in full and to the extent of half share in the remaining suit plots. 5. Being aggrieved the plaintiff preferred Title Appeal No. 34 of 1975 in the Court of the learned District Judge at Alipore, which was eventually transferred to the Court of the learned Additional District Judge, Fourth Court at Alipore. 6. By judgment and decree dated May 26, 1976, the learned Judge in the lower appellate Court dismissed the appeal on contest and affirmed the judgment and decreed passed by the learned trial Judge. 7. Being aggrieved the plaintiff has come up with this second appeal before this Court. 8. Mr. Ramapati Ray, learned Advocate, appearing for the appellant, argued that the Courts below substantially erred in law in accepting the claim of the defendant No. 1 as the heir of Nayantara as the property acquired by a Hindu woman in lieu of her maintenance is not her stridhana property. 9. It is settled law that the succession to all kinds of stridhana, except yautak, devolves, in default of lineal descendants, on the uterine brother, the mother, the father and the husband. This is the order given in the Dayabhaga. 10. A Division Bench of this Court in the case of (1) Mahendra Nath Maity v. Giris Chandra Maity and Others reported in 19 Calcutta Weekly Notes 1287, held that on the death of a Hindu married woman, governed by the Dayabhaga School of Hindu Law, her ayutuka stridhana properties will always be inherited by the brother in preference to her husband. 11. In the case in hand, Nayantara acquired the disputed properties in execution of a decree for maintenance and as the maintenance money or property given in lieu of maintenance is stridhana, the plaintiff cannot have any claim being the heir of the husband of Nayantara as such property would always be devolved, in default of lineal descendants, upon the brother of Nayantara. 12. The appeal, in my view, has no substance and is, therefore, dismissed. There will be no order as to costs. Let photocopies of this judgment and decree, if applied for, be supplied to the applicants expeditiously.