The Respondent in this Second Appeal sued, as being the reversionary heir of her father after the death in 1898 of her widowed mother Jagadishwari Debya, for a declaration of her title to, and the recovery of possession of, a share in a shikimi taluk. It appears that in 1873 a decree for rent of the taluk was obtained against Jagadishwari and her co-sharers. The latter satisfied the claim, brought a suit for contribution against Jagadishwari, and were given a decree, in execution of which a share of the taluk was sold and purchased on the 20th May, 1876, by the Appellant, a Mahomedan. Both the Courts below have decreed the Plaintiff-Respondent's suit, and this appeal is preferred by the Defendant.
The first of the only two points raised on the Appellant's behalf is as to the refusal of the Court of first instance to grant the Appellant an adjournment and direct the issue of a commission for the examination of two ladies to prove that the Respondent's father had adopted a son and that she had consequently been excluded from inheritance.
As to this the facts are these. The issues were first framed on the 17th August, 1907, but on the 10th June, 1908, an additional issue expressly raising the question of the alleged adoption was added. Witnesses were from time to time summoned, and the case was heard from the 20th to the 26th November. Among the Appellant's witnesses were two members of the family, called to testify to the adoption, but one of these (Aredhan) would not do more than swear that there had been some talk of an adoption, while the other (Shyam Sundar) failed to appear and no steps were taken to enforce his attendance. But on the 26th November one Kali Kumar Chuckerbutty, a pleader connected with the family, who had already been examined by the Respondent as a witness in the case, was once more and at the last moment put into the witness-box by the Appellant to declare that he had heard his mother asked the Respondent's sister Rashmoni say that a boy had been adopted; and no sooner was this hearsay statement extracted from him than the Appellant applied for an adjournment and the issue of a commission for the examination of the two ladies. In these circumstances the refusal to accede to the prayer might, we think, be supported on the merits, if this were a regular appeal, it is certainly not arbitrary and incapable of justification, and we are of opinion that it is not open to us, of second appeal, to interfere with the discretion exercised in the matter by the lower Court.
The second point relates to the finding that, in the suit for contribution brought against her, Jagadishwari did not represent her late husband's estate, and consequently the reversioners were not bound by the sale in execution of the decree in that suit. The argument with which we are pressed, is that, as the original liability was one for arrears of rent, to liquidate which the entire tenure might have been sold, the decree for contribution arising directly therefrom should be held to have had the same effect, the sale under it passing not the widow's interest merely, but the taluk. The point is not free from difficulty, but on the whole, we are disposed to think that the view taken by the Courts below is correct and should be affirmed. The authorities on the subject were discussed by this Court in Brojo Lal Sen v. Jiban Krishna Roy and, on appeal to the Privy Council, their Lordships of the Judicial Committee [see Jiban Krishna Roy v. Brojo Lal Sen(2)] expressed concurrence with the view that, where a suit for rent against a Hindu daughter was brought in respect of arrears which had accrued due after her father's death and while she was in enjoyment of the property, the liability for rent should be regarded as her personal liability, and ought not to be held to attach to the reversion unless and until the landlord proceeded to bring the tenure itself to sale under the special provisions of the rent law. It comes to this, indeed, that it does not follow that, because a liability could be made a charge on the estate, it ipso facto ceases to be a personal liability’; and thus in Baijun Doobey v. Brij Bhookun Lall, it was held by the Privy Council, that the liability of a Hindu widow to pay maintenance to her mother-in-law, though charged on the estate, was personal to her, so that a sale in execution of a decree therefor against her passed only her interest. Here, moreover, there are further difficulties in the Appellant's way: for neither the decree in the rent suit nor the decree in the action for contribution is in, and we are, therefore, in the dark, both as to whether the whole tenure could have been sold in satisfaction of the former, and as to the capacity in which the latter was obtained against Jagadishwari. All that we have to guide us in the matter is the Respondent's sale-certificate, and that refers to “the property of the judgment-debtor, Jagadishwari Debya, widow of Brojo Mohan Mohalnabis,” a description which indicates the lady's interest as widow rather than the estate itself. And we cannot help observing in conclusion that the point now taken is really a new one, the nearest approach to it in the Court below being apparently the argument that the circumstances of Jagadishwari Debya were such that the sale in execution of the decree for contribution against her must be regarded as caused by legal necessity and, therefore, binding on the reversioners.
For all these reasons we hold that the contentions raised fail, and the Appeal must be dismissed with costs.
Appeal dismissed.