Karatala Lakshmi Bihar Vs. Hriday Ranjan Chowdhury

SUPREME COURT
(Appellate Division)
(Civil)

Karatala Lakshmi Bihar represented by Dharmadarshi Bikshu being dead Sreemat Amrita Nanda Mahathero…………………………………..Appellant.

Vs.

Hriday Ranjan Chowdhury & Ors…………………………… Respondent.

Civil Appeal No. 40 of 1984

From the Judgment and decree 20.06.1983 passed by the High Court Division, Comilla Bench in Second Appeal No. 21 of 1973.

JUSTICE:
Badrul Haider Chowdhury. J.
Shahabuddin Ahmed. J.
M. H. Rahman. J.

Judgment Dated : November 11, 1987.

Leave was granted to consider whether the Buddhists in Bangladesh are governed by the Hindu Law in matters of succession.

Both the plaintiffs and thedefendants accepted the proposition that the Buddhists of Bangladesh are governed by Dayabhaga Hindu Law in matters od succession. The proposition laid down in 32 DLR 187 that “….. it cannot be said that the Buddhists of our country are goverened by Hindu Law with regared to succession.” is very sweeping.

JUDGEMENT

1. Badrul Haider Chowdhury, J:- This appeal by special leave is directed against the judgement and order of the High Court Division in second Appeal No. 21 of 1983.

2. Leave was granted to consider whether the Buddhists in Bangladesh are governed by the Hindu Law in matters of succession.

3. Facts are as follows:- Plaintiff instituted the suit for declaration of titrle and confirmation of possession in the suit land alternatively for recovery of possession together with a prayer for declaration that the Nirupannama dated 14.03.1937 was illegal, null and void and not binding on the plaintiff. Plaintiff is the son of Tripura. The land originally belonged to one Lakshmi Charan Barua who died leaving behind a widow Kumari Barua and two daughters namely Tripura and Promilla. On Lakshmi’s death his widow Kumari got life interest. Kumari died leaving daughters Tripura and Pramila who also got life interest in the property. On Tripura’s death her interest developed upon her sister Pramila for life time. Pramila died in 1973 leaving behind five daughters, defendant No. 2 and others. Pramila Sundari executed a document called Nirupannama in favour of the Chief Priest of Lakshmi Bihar. This document was assailed by the plaintiff as being fraudulent and collusive inasmuch as it has affected the reversioners and their interest. The defendant threatened the plaintiff with dispossession and hence the suit.

4. Defendant resisted the suit and contended that the plaintiff is not entitled to any relief. The trial Court found that the plaintiff is out of possession of the suit land and his remedy is to bring a suit for partition. In that view of the matter the trial Court dismissed the suit as being not mentionable. On appeal the learned Subordinate Judge took a contrary view and decreed the suit. In a Second Appeal the High Court Division considered the question of applicability of the law and the contention of the plaintiff the Buddhists of Chittagong are governed by Dayabhaga Hindu Law in matters of succession. If the Hindu Law is applicable then a female heir with limited interest may alienate the estate for legal necessity and also for certain religious and charitable purpose. The question was whether Ext. I Niruponnama was valid even after the death of Pramila and if it is valid then plaintiff gets nothing. On consideration of decisions cited at the bar the High Court Division affirmed the judgment and order of the appellate court below and decree the suit declaring that the plaintiff’s title to one-third share in the suit property excluding. R.S. Plot No. 1519 of item No. 6 of Schedule I and further the plaintiff do get joint possession with the contesting defendants and defendants 3 and 4 in the suit land and declared that Ext. I is void and inoperative.

5. Leave was granted to consider whether the Hindu Law is applicable in the case.

6. In the instant case the plaintiff contended that the Buddhists of Bangladesh are governed by Dayabhaga Hindu Law in matters of succession. The defendants did not contest the proposition either in the written statement or at the trial. The learned Single Judge observed:

“As a matter of fact, both the parties agreed that the Dayabhaga School of Hindu Law would govern the succession in the present case.”

Civil litigation is an adjudication of dispute between the litigants and the Decree is a final decision of the Court. No issue was raised at the trial nor the point was in controversy.

7. Mr. S. R. Pal, learned Counsel contended that even now the point can be decided since important point of law has been raised on status and reliance was placed on 32 DLR (HCD) 18. The learned Judge noticed that 32 DLR 187 based its decision on Indian amendments of 1956. These amendments have not been made in the Succession Act in Bangladesh. The Division Bench in that case observed:

“In 1956, Hindu Law in India was amended and the Buddhists of India were brought within the ambit of the Hindu law. But in our country no such amendment has been made. As such it cannot be said that Buddhists of our country are governed by the Hindu Law with regard to succession.”

This conclusion, with respect, appears to be very sweeping. Shastri’s Hindu Law (1940 ed.) cites a ruling of the Calcutta High Court that the Buddhists of Bengal are governed by Bengal School of Hindu Law (Mondoari Vs. Kshitendra S. A. No. 2256 of 1931 (at page 46). The amendments of 1956 were made to bring the law in conformity with the Judicial decisions. But this point need not be pursued further because as it has been noticed that the plaintiff and the defendant both took the position that Hindu Law is applicable in their case. So where was the controversy? A court of law does not decide a point in vacuo. Decree means “the formal expression of an adjudication which so far as regards the court expressing it, conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit.” Where there is no controversy, the Court is not expected to lay down a law on supposed controversy. As for the other questions whether the parties should be governed by principles of equity, Justice and good conscience they do not merit consideration and no body had alleged anything to the contrary. The point rests there. The appeal is therefore, dismissed. No. costs.

Ed.

Source: 40 DLR 137 (AD).