Sibbosoondery Dabia vs Bussoomutty Dabia And Ors. on 3 May, 1881

Calcutta High Court
Sibbosoondery Dabia vs Bussoomutty Dabia And Ors. on 3 May, 1881
Equivalent citations: (1881) ILR 7 Cal 191
Author: Wilson
Bench: Wilson


Wilson, J.

1. This is a suit by a widow to enforce her claim to a share in certain properties of her deceased husband, which are being partitioned between he£ husband’s descendants. The husband was one of five brothers, and those five brothers and their descendants continued to live jointly till the partition in question; he died leaving a widow (the plaintiff) and two sons. The first son was Suttya Runjun, who died before the partition decree, leaving his daughter Bussoomutty (the first defendant) his only daughter and heiress. The second son, Suttya Krishna, was alive at the date of the passing of the partition decree; he has since died, leaving four sons, the infant defendants, his heirs, Suttya Bhoosun, Suttessur, Suttya Nundo and Suttyajeet. The partition suit was instituted some years ago for the partition of the whole family property, and the decree in that suit was made on the 28th November 1872. That decree gave Suttya Krishna, the son of Suttya Prosunno, five-thirtieths, and Bussoomutty Dabia three-thirtieths, of the family property in their character as heirs to Suttya Prosunno. Suttya Krishna also took a share in some property of another member of the family, but that is not in question in this suit. The partition decree having been made, the partition was proceeded with; but by a certain order made in the suit, a particular portion of the immoveable property was directed to remain unpartitioned, and these properties are now in the hands of the Receiver. Under these circumstances, the plaintiff claims a share in the partitioned property equal to that which was allotted to the infant defendants, and a moiety of that property which was allotted to Bussoomutty, and also a one-fifth share in the properties which remain unpartitioned. The suit came on for settlement of issues, and the only question which arises is, whether such a suit will lie under the circumstances. It appears to me that the whole weight of authority is in favour of the plaintiff. The earlier cases cited in Mayne, Section 404, and in I. L. R., 3 All., 88, and an unreported case, No. 235 of 1877, Sreemutty Dossee v. Kumall Deb, delivered by Pontipex, J., are on all fours with the present case; whilst, on the other hand, there are the cases reported in 12 and 13 W. R., pp. 409 and 66, of Puddiim Mookee Dossee v. Bayee Monee Dossee. It is not necessary to say, whether this can or cannot be reconciled with the other authorities,—it is sufficient to say that it is distinguishable: in that case the partition was exclusively amongst the grandsons, and the grandmother was not entitled to a share, the present case, as also the case before-Pontifex, J., is not a partition amongst grandsons. The decree will, therefore, direct that the plaintiff is entitled to an equal share with the defendant Bussoomutty and the infant defendants, in the properties which, under the partition decree, have been allotted to the represent tatives of Suttya Prosunno, and to a life-interest in the income of the property remaining unpartitioned. The Receiver’s costs will come out of the estate.

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