Present: Shri H. Singh,

Tuesday the 22nd day of May, 2007

Title Appeal No.101 of 2004.

From the decree dated 5-7-04 ( decree signed on 19-07-04),

Subordinate Judge Sri S.M. Tripathi, Civil Judge (Sr. Dn.) and made in

Title Suit No.71/75

Madhab Ghosh and 16 others ……………………  Appellants


Naba Kumar Das and 19 others ………………….. Respondents.

          This appeal coming on this day (or having been heard on ) 18-5-01

In the presence of:-

Sri Sasanka Shekhar Rooj ………………… Advocate for the Appellants

Sri Chandi Prasad Bannerjee …………….. Advocate for the respondents

and having stood consideration to this day, the court delivered the following judgement:-

          The appellant Madhab Goswami and 16 others on 20.8.2004 filed this Title Appeal against the Judgement dt. 05.07.04 and decree sealed and signed on 19.07.04 passed by the Ld. Civil Judge (Sr. Dn.), Suri in T.S. No.71/75 inter alia the following main grounds amongst others that the Ld. Court below misinterpreted the provisions of Hindu Law and Hindu Succession Act and that the widow (Gosain Dasi) had the power to transfer only the life interest in the suit property. According to them the Ld. Court below wrongly held that Bahu Ballav Goswami and Sripati Ghosh by way of pre-emption of the sold property acquired only life interest in the suit property which after coming into force of Hindu Succession Act, 1956 reverted back to the plaintiff as reversioner.

          Ld. Advocate for the respondent-plaintiffs supported the judgement and decree passed by the Ld. Court below and submitted that there is no fault in the judgement and decree passed by the Ld. Court below.

          The plaintif late Nilima Sundari Dasi subsequently after her death substituted by her heirs, filed the T.S. No.174/1974 on 18.79.74 praying for a declaration of recovery of possession of ‘A’ Schedule property that originally belonged to Nemai Ch.Das and his brother Radha Raman @ Radhanath Das and both of them held the same in equal share. According to them Radha Raman Das and Nemai Ch. Das died without any male issue. Radha Raman Das died on 10th Baisakh, 1343 B.S. leaving behind her widow Gosain Dasi, the mother of the plaintiff and she inherited the property under Hindu widow’s Raght and was in joint possession of the suit property along with Nemai Ch. Das. She thgen sold the Suit property by a registered deed of sale dt. 13th Ashar, 1343 B.S. corresponding to 14.7.1976  to Nemai Ch. Das and as such Nemai Ch. Das began to possess the entire 16 anna share in ‘A’ schedule property. They further alleged that the property sold by the widow of Radha Raman to Nemai Ch. Das was pre-empted by Bahuballabh Goswami and sripati Ghosh u/Sec. 46 West Bengal Tenancy Act by virtue of an order in Misc. Case No.308/1937 on 11.12.37 and since then Bahuballabh Goswami and Sripati Ghosh remained in possession of the same in life interest in the suit property. According to the plaintiffs the ‘B’ schedule property was recorded in the name of Nilima Sundari, the present plaintiff in said 8 anna share after the said property was gifted to her by a registered deed of gift dt. 29.5.1950 by Nemai Ch. Das. Nemai Ch. Das in the same date also gifted the remaining half share in the suit property possessed by him on the same date i.e. on 29.5.1950 by executing a deed of gift. According to the plaintiffs the property transferred from Gosin Dasi to Nemai Ch. Das being not for religious and charitable purposes, the half share on the suit property gifted by /gosain Dasi reverted to plaintiff Nilima Sundari who is the only daughter of Gosain Dasi after demise of Gosain Dasi on 10.8.1974. The plaintiffs alleged that the alienation dt. 14.7.1936 being a nullity, the property reverted back to the present plaintiff Nilima Sundari Das, a reversioner of Radha Raman Das. In para 8 of the plaint the plaintiffs explained how Radha Raman Das and Nemai Ch. Das became owners of the suit property in half share each.

          Under the circumstances, the plaintiff filed this suit praying for declaration of her title and recovery of ‘B’ schedule property on the grounds stated above.

          The defendants filed a written statement on 20.3.1992 wherein they alleged that the suit is barred by limitation. He denied that Gosain Dasi sold only a life interest to Nemai. According to them Nemai Das purchased the property in full interest as the same was sold for legal necessity. According to him, one Suit was fild for declaration that the Deed dt. 20.51950 was fraudulent and void against the plaintiff which was compromised and the plaintiff executed a Deed of gift in favour of Nemai Das in 1958 disclaiming all her right, title and interest  in the suit property. From the case record it appears that one written statement was also filed by the three defendants on 05.5.1975 wherein they alleged that Nemai Ch. Das has full  right title in the property as he purchased from Gosain Dasi. The substituted heirs of this suit filed a Written Statement on 03.03.1991 wherein they made similar allegations. In para 10 of their Written Statement the substituted legal heirs stated that Nemai Das had his own daughter named Seba Dasi of Anandapur and alleged that the Deed of gift dt. 29.5.1950 is not true and the said document was obtained by the plaintiff when Nemai Das was senseless and unconscious. According to them the plaint case  that Gosain Dasi did not sell the suit property for legal necessity – is false. According to them it is false to alleged that Gosain Dasi died on 10.8.1974. They prayed for dismissal fo the suit.

          Keeping in view the points raised in the Memo of Appeal and pleadings of the parties and the issues involved, this Court is called upon to decide the following points:-

1)   Did the Ld. Court below err in deciding any question of law or that of fact as alleged?

2)   Did the plaintiff acquire any right, titled and interest in the suit property as a reversioner as alleged?

3)   Are there any grounds to set aside the judgement and decree passed by the Ld. Court below?


Points Nos. 1 to 3:- All these three points are taken up together for adjudication for the sake of convenience, continuity and brevity in discussions.

          The ld. Court below in his judgement refereed to Ext.1 series, but from the case record I find that not even a single document has been exhibited by the plaintiffs at the time of trial in the Lower Court. However, the sale deed dt. 14.7.1936 executed by Gosain Dasi in favour of Nemai Ch. Das, the son of late Sarba Baran Das is available. This being a document more than 70 years old and since both the parties have referred to the same in their pleadings, the same is, at this stage marked Ext.1 in favour of the plaintiff-respondents for the ends of justice. A perusal of the document shows that the land in question was sold by Gosain Dasi, wife of Radha Raman Das with a view to reside near her father’s house for maintenance of her daughter i.e. the deceased plaintiff namely Nilima Sundari Dasi, the wife of Sasti Gopal Das. To bring up one’s child and to provide for maintenance of such child is a legal necessity. Therefore, it is crystal clear from Ext.1 that the alienation of the suit property was made by Smt. Gosain Dasi for legal necessity and as such he Ld. Court below came to a wrong finding regarding this question of fact. When any fact regarding terms and conditions and the reasons for sale are recorded in a sale deed required to be registered, no oral evidence is admissible in a suit between the parties to such deed or their heirs claiming through them. Once a transfer of any immovable property for legal necessity is made by a widow, such alienation gives a good right, title and interest in favour of the transferee in respect of such immovable property, even though the transferor had only life interest in the Suit property. The ld. Court below in his Judgement observed, “The burden of proof that the transfer by Gosai Dasi was for legal necessity, was required to be proved by the defendants as per provisions of law. But the defendants have failed to prove the above fact. The 8 annas share described in ’B’ schedule property along with other properties were sold by Gaosai Dasi when she was in possession of the same in capacity of Hindu widow’s right. The ‘B’ schedule property was pre-empted by Balla Gosai and Sripati Ghosh, as stated above, and they acquired only life interest of Gosai Dasi. Gosai Dasi died on 10.8.74 as per plaint and oral evidence on record. The plaintiff being the only reversioner as per plaint case and being the only daughter of son less Radharaman she had right of reversioner. The transfer dt.14.7.36 in respect of ‘B’ schedule property and which was subsequently pre-empted by predecessor of defendants,  acquired ‘B’ Schedule property from the husband having life interest.”

I find it difficult to agree with the aforesaid views of the Ld. Court below on account of the following additional reasons as well, in addition to the  reasons given above:-

(1)  After coming into force of Hindu Succession Act, 1956 by virtue of Section 4(1) thereof, which has an overriding effect, the old rule regarding inheritance of any movable property by reversioners has come to an end as the manner in which the property of a Hindu male or a female dying intestate shall devolve has been mentioned/provided for in detail in the Act. One author Srinivasan on Hindu Succession Act, 1956 regarding this matter observed as follows:-

“The widow continues to be stopped from challenging the validity on the ground of want of legal necessity and reversioners have completely disappeared by virtue of the provisions of Sec.15. The customary law of succession has been completely abrogated by the Act which exhaustively amends and codifies the law relating to intestate succession among Hindus. Even the heirs of the husband referred to in Sec.15 are the heirs mentioned in Sec.8 and not the heirs under the customary law. The next reversioner, who was a creation of the customary law, is no longer in the picture.”

          Therefore, there is no question of acquisition of this  case property by the plaintiffs as reversioners.

(2) The deceased Gossai Dasi as per para 12 of the plaint died on 10.8.74 i.e. more than 18 years after coming into force of the Hindu Succession Act, 1956 and she never claimed any benefit u/Sec.14(1) of the Hindu Succession Act, 1956 during her life time. As such, the suit is hopelessly barred by limitation.

(3)  Thirdly, a widow becomes absolute full owner of a property only when such widow is in possession of such property u/Sec.14(1) of the Hindu Succession Act, 1956. In this case since none of the plaintiffs having been in possession of the suit property when the Act came into force, none of them have become absolute owner of the suit property u/Sec.14(1) of the Hindu Succession Act, 1956.

It is true that the defendant neither adduced any evidence nor filed any document, but it is the primary duty of the plaintiff to establish its own case.

          Therefore, on account of the reasons mentioned above, I find that the plaintiffs have miserably failed to prove their right, title and interest in the suit property.

          Accordingly, the judgement and findings of the Ld. Court below can not be sustained.

          All these three points are decided in favour of the appellants and against the respondents.

          Memo of appeal is correctly stamped. Hence it is,

                                      O R D E R E D

          that the Title Appeal be and the same is allowed on contest without cost. The judgement and decree passed by the Ld. Court below is hereby set aside and the suit filed by the plaintiff-respondents stands dismissed.

          The Deed dated 14.7.1936 is marked Ext.1 for the reasons stated in the body of the judgement.

          Let a copy of this judgement be sent to the Ld. Court below at once.

                                                                   Harjinder Singh,

                                                Additional District Judge, 1st Court,

                                                                    Suri, Birbhum