Madhu Sudan Dutt And Ors vs Sm. Malabika Dutt And Ors
2023 Latest Caselaw 550 Cal/2

 IN THE HIGH COURT AT CALCUTTA
         ORDINARY ORIGINAL CIVIL JURISDICTION
                   ORIGINAL SIDE

Present:
The Hon'ble Justice Sugato Majumdar

                           C.S. No. 75 of 1970
                     MADHU SUDAN DUTT AND ORS.
                                  VS.
                     SM. MALABIKA DUTT AND ORS.



For the Plaintiffs          : Mr. Purna Chandra Paul Chowdhury, Advocate,
                             Mr. Deep Narayan Mukherjee, Advocate,
                             Mr. Gopal Paul Chowdhury, Advocate.



Hearing concluded on        : 10.02.2023



Judgment on                 : 24.02.2023



Sugato Majumdar, J:

       The instant suit is instituted by the original Plaintiffs praying for declaration

that the premises no.26, Sitaram Ghosh Street, Kolkata and 31, College Row, Kolkata

belong to and form part of joint family properties; a declaration of the shares of the

parties in various properties mentioned in Schedule "A" of the plaint; a declaration

that the deed of gift dated 1st February, 1964 is a sham and benami transaction not

meant to be acted upon and is invalid and void; direction to the original defendants
                                                                              Page |2


to render true and faithful accounts; partition of joint family properties by metes and

bounds along with other reliefs.


      The plaint case is that the common ancestor of the parties herein Nani Gopal

Dutt, since deceased, was a common ancestor of the parties and was the sole and

absolute owner of various movable and immovable properties described in Schedule

A of the plaint. Out of various immovable properties premises no. 8B, Nabin Pal

Lane, Calcutta was acquired by the said Nani Gopal Dutt, since deceased, as a result

of the partition between himself and his brothers. Properties located at premises no.

26, Sitaram Ghosh Street, Calcutta as well as 31, College Row, Calcutta were

acquired by the said Nani Gopal Dutt out of his own money but in the benami of his

wife Smt. Rani Bala Dutt, since deceased. The said Nani Gopal Dutt died intestate in

October 1951, leaving behind him his surviving son Paresh Chandra Dutt, the

original Defendant, his widow Rani Bala Dutta and three grandsons, being the

original Plaintiffs, of his predeceased son Suresh Chandra Dutt. Smt. Rani Bala Dutt

died on 9th August, 1952 and she was governed by Dayabhaga School of Hindu Law.

Baidya Nath Dutt, the original Plaintiff No.1 and one of the son of the predeceased

son of Nani Gopal Dutta died on 1st October, 1985 intestate leaving behind him his

wife Depti Rani Dutt, son Sumit Kumar Dutt and daughter Barnasree Dutt who were

substituted later on. Paresh Chandra Dutt died on 09.04.1986. His legal heirs and

successors were substituted in the suit as Defendants. The properties mentioned in

"Schedule A" are joint properties. Paresh Chandra Dutt, since deceased used to act

as manager of the joint properties and funds and had misapplied the income, as

alleged. It is averred in the plaint that Paresh Chandra Dutta, since deceased used to
                                                                                  Page |3


claim the immovable properties located at 26, Sitaram Ghosh Street, Kolkata and 31,

College Row, Kolkata as properties of her mother and for that reason he inherited

such properties from her mother to the exclusion of the original Plaintiffs. It is the

case of the original Plaintiffs that the said properties were purchased by Nani Gopal

Dutt in benami of Rani Bala. Real owner of the said properties was Nani Gopal Dutt.

As such, on demise of Nani Gopal Dutt, the sons of predeceased son of Nani Gopal

Dutt, being the original Plaintiffs are entitled to inherit the said properties. It is also

the case of the original Plaintiffs that the original Defendant Paresh Chandra Dutt,

since deceased transferred and conveyed to his sons his undivided half shares of the

properties located at premises no.16 and premises no.17, Beniatola Lane, Kolkata.

The remaining undivided half share of these two properties, belong to the original

Plaintiffs. Claiming all the properties mentioned in Schedule "A" of the plaint as

joint properties, the instant suit was filed praying for reliefs, as stated above.


              List of immovable properties set out in Schedule "A" are:


                                     Schedule - "A"


                        PART I - IMMOVABLE PROPERTIES


   1.

8B, Nabin Pal Lane, Calcutta.

2. 16, Beniatola Lane, Calcutta.

3. 17, Beniatola Lane, Calcutta.

4. 26, Sitaram Ghosh Street, Calcutta.

5. 31, College Row, Calcutta.

Page |4

The original Defendants contested the suit by filing written statement. It is

denied that Nani Gopal Dutt was sole and absolute owner or acquired properties

alleged in the list given in Schedule A or that he was the owner of ornaments or

jewellery or cash amounting to Rs. 1,00,000/- as alleged in Schedule A. It is also

denied that Nani Gopal Dutt was owner of premises no. 26, Sitaram Ghosh Street,

Calcutta and 21, College Row, Calcutta. It is contended in the written statement that

Nani Gopal Dutt since deceased, at the time of death, left behind premises no. 8B,

Nabin Pal Lane and 16 and 17 Beniatola Lane, Calcutta as well as shares of United

Bank of India a sum of Rs. 10,000/- and some furniture and utensils. It is also

contended in the written statement that Nani Gopal Dutt had no right, title or

interest in the properties located at Premises No. 26, Sitaram Ghosh Street, Calcutta

and 31, College Row, Calcutta. It is the case of the Defendants that Rani Bala Dutt,

mother of the original Defendant purchased the premises no. 26, Sitaram Ghosh

Street on 21stJune, 1940 out of her stridhana properties. Similarly Rani Bala Dutt

purchased on 28th September, 1943 the premises no. 31, College Row, Calcutta for

lawful consideration out of her stridhana money. She was sole and absolute owner

of those two properties. Rani BalaDutt died intestate on 9th August, 1952. On her

death the original Defendant inherited two properties, namely, premises no. 26,

Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta as her only son and

legal heir to the exclusion of the original Plaintiffs. It is the contention of the written

statement that on death of Nani Gopal Dutt the Plaintiffs and the original Defendant

became his legal heirs and successors. It was further stated in the written statement

that the original Plaintiffs and the original Defendant were joint owners of the Page |5

property located at premises no. 8B, Nabin Pal Lane along with 250 shares of United

Bank of India and some utensils and furniture. It was denied that Nani Gopal Dutt

left a sum of Rs.1,00,000/-. The original Defendant in terms of her registered deed of

gift dated 01.02.1964 transferred to his sons, namely, Defendant Nos. 2 to 6 of his

right, title and interest in respect of premises no. 16, Beniatola Lane, Calcutta and 17,

Beniatola Lane, Calcutta by registered deed of gift and have since to any proprietary

interests therein. As a result of such transfer the Plaintiff and the original Defendant

jointly owned and only premises no. 8B, Nabin Pal Lane, Calcutta, 250 shares in

United Bank of India and some other articles.

Plaint was amended subsequently and additional written statements were

filed. On death, parties were substituted.

Issues were framed on the basis of the rival claims of the parties and

subsequently trial of the suit followed. Single Bench of this Court passed judgment

on 8th August, 1994. In terms of the said judgment Plaintiffs' claim in so far as it

relates to premises no. 26, Sitaram Ghosh Street, Calcutta, and 31, College Row,

Calcutta, was negated but it was held that Plaintiffs and Defendants each were

entitled to fifty percent shares of the properties located at 8B, Nabin Pal Lane,

Calcutta, 16, Beniatola Lane, Calcutta and 17, Beniatola Lane, Calcutta. Preliminary

decree was accordingly passed and partition commissioner was appointed to affect

the partition of the immovable properties by metes and bounds in accordance with

the shares decided in the preliminary decree.

Page |6

An appeal was preferred before the Division Bench against Judgment of the

Single Bench dated 8th August, 1994. The Appellate Court, in terms of the Judgment

dated 3rd June, 1998 set aside the judgment and decree of the Single Bench in respect

of premises no. 26, Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta.

The Single Bench relied upon the ratio of Mithilesh Kumari & Anr. Vs. Prem Behari

Khare [AIR 1989 SC 1247] and Om Prakashvs Jai Prakash [AIR 1992 SC 885] in

coming to the conclusion on applicability of Benami Transactions (Prohibition) Act,

1988. The Appellate Court set aside the judgment and decree of the Single Bench in

respect of premises no. 26, Sitaram Ghosh Street, Calcutta and 31, College Row,

Calcutta upholding the rest, in view of ratio of 1995 (2) SCC 632 and 1994 (4) SCC

572. The suit was remanded to be decided afresh by the Trial Court in respect of

these two properties. Liberty was given to the parties to adduce evidence. It was

further ordered that so far as the report which has already been filed by the Learned

Commissioner of Partition as regards the other properties shall be dealt with by the

Learned Trial Judge in accordance with law.

Original Plaintiff was not interested to proceed with the suit. In terms of

order dated 9th September, 2019, Defendant Nos. 1, 3, 5 and 6 were transposed as

Plaintiffs to proceed with the suit.

Since the suit was to be heard afresh in respect of the properties located at 26,

Sitaram Ghosh Street and 31, College Row both in Calcutta, suggested issues were

filed by the parties and issues were framed in terms of order dated 23rd June, 2016,

which are as follows:

Page |7

1. Whether premises no. 26, Sitaram Ghosh Street, Calcutta and 31, College

Row, Calcutta are joint properties of the Plaintiffs and the Defendants?

2. Do the Plaintiffs have any interest in the immovable properties, particulars

of which have been given in part II of Schedule A to the plaint?

3. To what relief, if any, which the parties entitled to?

However, at the time of argument it was felt necessary to frame another issue

namely:

i) Whether Nani Gopal Dutt was the actual owner of the properties located

at 26, Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta and

Rani Bala Dutt was the benamder?

ii) Whether 26, Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta

were purchased by Rani Bala Dutt out of her stridhana property or out of

consideration money provided by Nani Gopal Dutt?

iii) Who are successors of Rani Bala Dutt in respect of 26, Sitaram Ghosh

Street, Calcutta and 31, College Row, Calcutta, if the said properties were

purchased by her out of stridhana?

Therefore, the recast issues may be stated as follows:

1. Whether Nani Gopal Dutt was the actual owner of the properties located

at 26, Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta and

Rani Bala Dutt was the benamder?

Page |8

2. Whether 26, Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta

were purchased by Rani Bala Dutt out of her stridhana property or out of

consideration money provided by Nani Gopal Dutt?

3. Who are successors of Rani Bala Dutt in respect of 26, Sitaram Ghosh

Street, Calcutta and 31, College Row, Calcutta if the said properties were

purchased by her out of stridhana?

4. Whether premises no. 26, Sitaram Ghosh Street, Calcutta and 31, College

Row, Calcutta are joint properties of the Plaintiffs and the Defendants?

5. Do the Plaintiffs have any interest in the immovable properties,

particulars of which have been given in part II of Schedule A to the

plaint?

6. To what relief, if any, which the parties entitled to?

Issue nos. 1 and 2 should be clubbed together for decision. Since the suit was

filed in the year 1970 prior to coming into effect of the Benami Transactions

(Prohibition) Act, 1988 and since it was decided in R. Raja Gopal Reddy Vs.

Padmini Chandrasekharan (1995) 2 SCC 630, observed and applied by the

Appellate Court that operation of the said Act would not affect the suit, it is not

necessary to go into the provisions of the said Act to find its application in the

present suit.

The Learned Senior Counsel Mr. Paul Chowdhury vehemently argued that

when the original Plaintiffs asserted that the property was purchased benami burden

of proof lies on him to prove that. He referred to various decisions namely 2010(1) Page |9

CHN, 2014(1) Supreme Today, Page 1, 2015(7) Supreme Today Page 434 to

substantiate his argument.

It is trite law that when a plea of benami is taken burden of proof lies on the

person, who asserts so that the property is benami. In Jaydayal Poddar Vs. Bibi

Hazra [(1974) 1 Supreme Court Cases 3] speaking for the Bench, Justice R. S.

Sarkaria succinctly, laid down the principle of law:

"6. It is well settled that the burden of proving that a particular sale

is benami and the apparent purchaser is not the real owner, always rests

on the person asserting it to be so. This burden has to be strictly

discharged by adducing legal evidence of a definite character which

would either directly prove the fact of benami or establish circumstances

unerringly and reasonably raising an inference of that fact. The essence of

a benami is the intention of the party or parties concerned; and not

unoften, such intention is shrouded in a thick veil which cannot be easily

pierced through. But such difficulties do not relieve the person asserting

the transaction to be benami of any part of the serious onus that rests on

him; nor justify the acceptance of mere conjectures or surmises, as a

substitute for proof. The reason is that a deed is a solemn document

prepared and executed after considerable deliberation, and the person

expressly shown as the purchaser or transferee in the deed, starts with the

initial presumption in his favour that the apparent state of affairs is the

real state of affairs. Though the question, whether a particular sale

is benami or not, is largely one of fact, and for determining this question, P a g e | 10

no absolute formulae or acid test, uniformly applicable in all situations,

can be laid down; yet in weighing the probabilities and for gathering the

relevant indicia, the Courts are usually guided by these circumstances: (1)

the source from which the purchase money came; (2) the nature and

possession of the property, after the purchase; (3) motive, if any, for

giving the transaction a benami colour; (4) the position of the parties and

the relationship, it any, between the claimant and the alleged benamidar;

(5) the custody of the title-deeds after the sale and (6) the conduct of the

parties concerned in dealing with the property after the sale."

It is further clarified that these indicia are not exhaustive and their efficacy

varies according to the facts of each case. But the source when the purchase money

came, is by far the most important test for determining whether the sale standing in

the name of one person, is in reality for the benefit of another. This principle of law

was subsequently referred to in Thakur Bhim Singh vs. Thakur Kan Singh [(1980) 3

SCC 72] where the Supreme Court of India laid down:

"18. The principle governing the determination of the question whether a

transfer is a benami transaction or not may be summed up thus: (1) the

burden of showing that a transfer is a benami transaction lies on the

person who asserts that it is such a transaction; (2) it is proved that the

purchase money came from a person other than the person in whose

favour the property is transferred, the purchase is prima facie assumed to

be for the benefit of the person who supplied the purchase money, unless

there is evidence to the contrary; (3) the true character of the transaction is P a g e | 11

governed by the intention of the person who has contributed the purchase

money and (4) the question as to what his intention was has to be decided

on the basis of the surrounding circumstances, the relationship of the

parties, the motives governing their action in bringing about the

transaction and their subsequent conduct, etc."

In Valliammal Vs. Subramaniam 23 (2004) 7 SCC 233, this issue was against

considered by the Supreme Court India. Six parameters were discussed referring to

Jaydayal Poddar's Case (supra) it was observed that it is well-settled that the

intention of the parties is the essence of benami transaction and money must have

been provided by the party invoking the doctrine of benami.

These principles of law, so laid down, was again reiterated and discussed in

Binapani Paul vs. Pratima Ghosh and Ors. [(2007) 6 Supreme Court Cases 100]

referring to Thakur Bhim Singh's Case (supra) as well as the four indicia laid down

therein. It was observed by the Supreme Court of India in this case that the four

factors should have to be considered cumulatively. The Court in this case

considered the relationship of the parties, namely, husband and wife primarily

motive of the transaction i.e. security for the wife and seven minor daughters as they

were not protected by the prevailing law and the legal position at that material point

of time.

Coming to the present case it is averred in the original Plaintiff that the

properties, namely, premises no. 26, Sitaram Ghosh Street, Calcutta and 31, College

Row, Calcutta were purchased by his grand-father Nani Gopal Dutt in benami, in the P a g e | 12

name of Rani Bala Dutt since deceased. Rani Bala Dutt was name lender only but

actual ownership was that of Nani Gopal Dutt. Loknath Dutt one of the Plaintiffs

deposed in this case and stated in examination-in-chief that the said properties were

purchased by his grand-father Nani Gopal Dutt in benami, in the name of late Rani

Bala Dutt and consideration money was provided by the said Nani Gopal Dutt. It

was further stated in examination-in-chief that Nani Gopal Dutt was a successful

business man and Rani Bala Dutt was a housewife who used to remain behind the

veil and that she did not have any personal income. It was further stated that the

properties were purchased in the name of Rani Bala Dutt to hide them from the

claim of the brothers. In course of cross-examination PW 1 conceded that at the time

of execution of the deeds in respect of these two properties he was not present. He

further conceded that at that time he was infant. He had never seen Rani Bala Dutt

lived in the residential house. A specific question was asked to him as to whether

Rani Bala Dutt received any money from Nani Gopal Dutt which answer was in

negative; he stated that there was no question of Rani Bala asking for money because

he was her husband. He could not find out from the history as to how the property

was purchased from Rani Bala Dutt. It is further stated in course of cross-

examination that if Nani Gopal Dutt had actually paid the consideration money then

objective of Nani Gopal Dutt for purchasing the property in the name of his wife

would have failed because Nani Gopal Dutt had made this property in the name of

his wife and not jointly with the family. Although it is stated by PW 1 that though it

is mentioned in the deed that property was purchased benami but they were aware

of the fact that consideration money was paid by Nani Gopal Dutt. It is also stated P a g e | 13

by him that he was two years infant at the time of execution deed so personal

knowledge cannot be put on him on the transaction. In course of cross-examination

it is also conceded by him that he heard information from paternal uncle and

thought consideration money relating to the documents was paid by Nani Gopal

Dutt.

Original testimony of PW 1 states that he was two years old at the time of

execution of deed in respect of the premises; he has no personal knowledge

therefore. He derived his knowledge about execution and payment of consideration

money from his paternal uncle. There is no other proof that consideration money

was paid by Nani Gopal Dutt. It is specifically stated by PW 1 that Nani Gopal Dutt

did not transfer any money to Rani Bala Dutt as they were husband and wife. A

presumption which impressed him and which he reiterated all though out is that

Rani Bala Dutt had no separate income for which consideration money must have

been provided by her husband Nani Gopal Dutt. Nowhere, it is stated that Rani

Bala Dutt had no stridhana property out of which he could have purchased the

property. There is no evidence to show by any cogency the circumstances prevailing

at the time of purchase of the properties or any intention of Nani Gopal Dutt to

purchase the properties in the name of his wife. He indicated that the properties

might have been purchased by Nani Gopal Dutta in the name of his wife to hide it

from his brothers. In that case the properties might have been purchased for the

benefit of his wife Rani Bala as law prevailing at that material point of time was not

enough to protect her interest. But no evidence was adduced.

P a g e | 14

In absence of anything more the available evidence adduced on behalf of the

original Plaintiff failed to establish, by preponderance of probabilities, that the

property was purchased by Nani Gopal Dutt in the name of his wife in benami; that

consideration money was paid by Nani Gopal Dutt and that Rani Bala is the only

ostensible owner or name lender but the real owner of the Nani Gopal Dutt.

Therefore, it is not established that the premises no. 26, Sitaram Ghosh Street,

Calcutta and 31, College Row, Calcutta were purchased by Nani Gopal Dutt in

benami of his wife or that consideration money was provided by Nani Gopal Dutt.

Another aspect of law may be discussed here. The noted author Dwarka Nath

Mitter in his seminal work named "The Position of Women in Hindu Law",

published in the year 1913, discussed on proprietary rights of women over her

stridhana properties in Chapter VI. The learned author referred to various

authorities and expressed the view that land purchased by a woman with her

saudayikastridhana becomes her stridhana and are subject to the same disposition

which law gives her power to make of her saudayika. This would be the case even if

the funds out of which lands were purchased were given to the wife by the husband,

as opined. The learned author referred to the observations and finding of the

Judicial Committee in Venkata vs Venkata [I.L.R. 2 Mad., 333 (P.C.)]. It was

observed in that case:

"It is suggested that where the funds are shown to have come wholly

or in part from the husband, and have been afterwards invested in

land by his widow, the same law which governs in the devolution of

immoveable estate derived from the husband is to govern that P a g e | 15

acquisition : but their Lordships cannot find any trace of authority to

support such a distinction, It is clearly the law that from the time the

funds were given to the widow by the husband they became her

stridhanam and that she had full power of disposition over them."

In this case it is the plaint case that fund for purchase of the two properties in

question was advanced by Nani Gopal Dutt which the original Plaintiffs failed to

establish. P.W.1 was an infant at the material point of time of the purchase for which

he could not state anything on the circumstances prevailing. He stated that no fund

was transferred by Nani Gopal to Rani Bala for purchase of the said two properties.

It might also be a situation where Rani Bala purchased the properties out of money

given to her as gift. No evidence is there. Even if it is assumed that fund was

advanced by Nani Gopal Dutt for purchase of the properties, in view of observation

of the Judicial Committee, as aforesaid, the same properties should be treated as

stridhana properties.

In absence of any cogent evidence it cannot be decided that Rani Bala was a

benamdar and the real owner was Nani Gopal in respect of the two premises namely

26, Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta.

Ashim Kumar Dutt, son of the original Defendant Paresh Chandra Dutt stated

in evidence that the properties were purchased by her grandmother Rani Bala Dutt

out of streedhana. It is further stated by him that rents from the tenants in respect of

the premises 26, Sitaram Ghosh Street was collected by Rani Bala through his father.

Therefore, preponderance of evidences established that Rani Bala was the owner of P a g e | 16

the two premises namely 26, Sitaram Ghosh Street, Calcutta and 31, College Row,

Calcutta.

Property purchased by a woman with her stridhana and savings of the income

of stridhana constitute stridhana according to all schools of Hindu Law, as discussed

by Sir D. F. Mulla. It does not make any difference whether the property is

immovable or not. There is no presumption that property of a woman who has no

income should be actually that of her husband. This is the presumption which

impressed too much the plaintiff's witness. It was held by Three Judges' Bench of

the Supreme Court of India in Sitaji v. Bijendra Narain Choudhary, AIR 1954 SC

601:

"There is no presumption that any particular property in the

widow's hands is part of husband's estate because a widow can have

properties of her own. Therefore, he who claims must establish his

right to it."

In view of discussions stated above it is the conclusion that the two premises

namely 26, Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta were

owned by Rani Bala as her stridhana property.

Issue Nos. 1 and 2 are, therefore, decided against the original Plaintiff.

Issue Nos. 3, 4, 5and 6 are taken up together.

The Learned Senior Counsel Mr. Paul Chowdhury argued on this point that

since the properties in question were purchased by Rani Bala out of her stridhana, P a g e | 17

succession to such properties shall be in accordance to the law of Dayabhaga.

According to him, irrespective of the source of stridhana, right of sons to inherit

comes prior to the sons of the predeceased son. He relied upon the texts of Sir D.F.

Mulla as well as Single Bench judgment of this Court in Prakash Chandra Mukherji

vs. Nandarani Debi [ILR (1951) 1 Cal 581].

Rules of succession differ in case of inherited property and stridhana property.

Referring to the text of Jimutavahana, the learned author Dwarka Nath Mitter

commented that there is a clear distinction between inherited property and stridhana

property. The learned author further opined that According to the rule laid down

by the Judicial Committee in the case of Collector of Madura Mootoo Ramlinga

Sathupathy, one would expect that inherited property would he regarded by the

Courts as stridhana in tracts governed by the Milakshara, while, in provinces where

the Influence of Jimutavaliana prevails, the Courts would exclude it from the category

of stritihana. It is stated by Sir Mulla that succession to a woman's stridhana varies

according to the fact whether she was married or unmarried and whether the

marriage was in an approved or unapproved form. It also varies according to the

source from which stridhana came. Rules of descent differ in different schools but we

are confined here with Dayabhaga School of succession. Rules of succession are

discussed by both the authors with reference to the text of Dayabhaga. There are

certain variations in the line of succession to different types of stridhana. In nutshell

it was the rule that the son's right to stridhana properties of mother comes earlier in

order of succession and is preferred to that of the sons of a predeceased son.

P a g e | 18

"Here it is expressly declared, that the mother's goods are common to

the son and unmarried daughter"

[Chapter IV, Section II, 7, Dayabhaga, Translation by H.T. Colebrooke] and further

"But for the cause above stated, the son and maiden daughter have a

like right of succession. On failure of either of them, the goods belong

to the other."

[Chapter IV, Section II, 9, Dayabhaga, Translation by H.T. Colebrooke]

Chapter IV Section II 25 expounds that what a woman receives at nuptial fire

in certain forms of marriage like bramha, on death right to succession of such

properties first devolve upon the maiden daughter; if there is none, then to the

betrothed daughter; or for want of such, it goes to the married daughter including

even a barren or widowed one; on failure of the daughters, it devolve on the son.

In Prakash Chandra Mukherji vs. Nandarani Debi [ILR (1951) 1 Cal 581]

Justice P.B. Mukherjkee, referring to the original text of Dayabhaga observed:

"There is a fundamental difference in the course of devolution between

the property of a Hindu male and the stridhana property of a Hindu

female. The first principle of difference is that women are given prior

rights of succession in stridhana. The class of stridhana, with which the

present case is concerned, is "anwadheyaka," which is a gift from the father

to his daughter after the daughter's marriage. In this class of stridhana,

unbetrothed and betrothed daughters have a prior claim over the sons, P a g e | 19

but the sons have a prior claim over married daughters. So that

the stridhaana heirs of Sushila in this case would ordinarily be her sons.

Therefore, Defendant Nanda Lal and Plaintiff Prakash would be the heirs.

The question, however, is what about the other two sons Nirmal and

Sudhir, who predeceased Sushila."

It was observed that the rights of the son's son come later to the son. There is

no authority to suggest that the claim of the sons of a predeceased son is preferred to

a son or daughter or are set on the same pedestal in matter of succession of stridhana

property of a woman. When a son was living, the rights of the sons of a predeceased

son do not come to the foreground or hold their sway. In nutshell, it is the

conclusion that in absence of any daughter, it is the son who would inherit the

stridhana properties of a woman. Therefore, the original Plaintiffs, being predeceased

sons of the son of Rani Bala had no right, title or interest or right to succeed Rani

Bala Dutt's srtidhana properties. These properties namely premises no. 26, Sitaram

Ghosh Street, Calcutta and 31, College Row, Calcutta do not form part of joint

properties as between the original Plaintiffs and the Defendant. The original

Plaintiffs are not entitled to any partition in respect of the properties located at

premises no. 26, Sitaram Ghosh Street, Calcutta and 31, College Row, Calcutta.

Issue Nos.3, 4, 5 and 6 are decided accordingly against the original Plaintiffs.

Preliminary decree in respect of 8B, Nabin Pal Lane, Calcutta, 6, Beniatola

Lane, Calcutta and 17, Beniatola Lane, Calcutta has already been drawn up. Since it

is decided hereby that the properties located at premises no. 26, Sitaram Ghosh P a g e | 20

Street, Calcutta and 31, College Row, Calcutta do not form part of the joint

properties as between the original Plaintiffs and the Defendant and that these two

later properties should not be subject to the present partition suit, no further

preliminary decree need to be drawn up.

The Partition Commissioner had submitted report and examined as witness.

Therefore, the suit should be fixed for hearing on the report of the Partition

Commissioner and argument for passing final judgment.

Fix 10/03/2023 for argument.

(Sugato Majumdar, J.)