P L D 1967 Dacca 692 (PLP)

"It seems to me that this is much too belated an attempt to resile from the admitted position. From the judgment of the learned lower Court it seems that it was the admitted position before him that this property was acquired by Shujau Sawdagor. In any case since the defendants neither categorically make a case that this was the inherited property of Sujau Sawdagor nor had tried to prove such a case. I see no reason to depart from the position taken by the learned lower Court that it was the common case that the property was acquired by Shujau Sawdagor." There is no dispute, too, that Shujau on his death left surviving him one widow and five male and female issues of whom the pro‑defendant No. 4 Ucha was the eldest. According to the plaintiff, the estate devolved on the pro‑defendants Nos. 3 and 4 as his widow and Orasa son respectively and it is from them that he has acquired the disputed subject‑matter. By common consent devolution of the property involved in this instance was governed by the Burmese Buddhist Law, according to which an Orasa child means the first born legitimate child who is competent to undertake the responsibilities of the deceased parent. The term 'Orasa' is used to denote (i) the child who acquires a vested interest to the extent of a quarter of the parental estate on the death of the parent of the same sex; (ii) the eldest child who, after the death of one parent of either sex and on the,, marriage of the surviving parent, has a claim to a quarter share in the parental estate; and (iii) the eldest child who pre‑deceases one of or both the parents but leaves behind children who are entitled to an equal share with their uncles and aunts in the estate their grand‑parent, in spite of the fact of their being out‑of time grand‑children. As to the right of inheritance of the Orasa child the relevant provision is that "Orasa becomes entitled to a definite one‑fourth part of the parental estate on the death of the parent of the same sex. The Orasa's estate comes into existence as soon as the parent dies. In other words, the Orasa's share vests at the moment of the parent's death". The rest, it appears, goes to the surviving spouse whose position is as follows:‑ "(a) When one of a married couple dies leaving behind no children or lineal descendants, the surviving spouse inherits the whole of the joint estate. (6) When one of a married couple dies leaving behind Orasa and Kanittha (younger) children, the surviving spouse inherits three‑fourths of the joint estate if he or she does not remarry, but only one‑half of the joint estate if he or she remarries. (c) When one of a married couple dies leaving behind children but no Orasa, the surviving spouse inherits the whole of the joint estate if he or she does not remarry, but only one- half of the joint estate if he or she remarries. (d) When one of a married couple dies leaving behind children and the surviving spouse partitions the joint estate with the children and remarries, the children of the first marriage have no further interest either in the share taken by the surviving parent or in the joint property of the surviving parent and the step‑parent." Thus when one of a Burmese Buddhist married couple dies, the estate of the couple devolves on the surviving spouse and the Orasa jointly. The Kanitthas (younger children) do not get anything till the death or remarriage of the surviving parent. Where, however, here is no Orasa (first‑born competent natural child) the surviving spouse takes the whole estate exclusively. So, if the pro‑defendant No. 4 was the Orasa son of Shujau and the estate devolved in the ordinary course of succession, the pro -defendants Nos. 3 and 4 must have got the whole of it. In that case the plaintiff also must have acquired good title. Defence, however, resists the plaintiff's claim mainly by contending first that Ucha was not the Orasa son and secondly that the estate in question was disposed of by a family arrangement made pursuant to the directions given by Shujau before his death and therefore, did not devolve, according to the ordinary course of succession. Before proceeding to deal with the impugned decision of the learned Courts below relating to these contentions, it may be worth‑while to set out the relevant law, i.e. Burmese Buddhist Law, governing a family arrangement:‑ "Amongst Burman Buddhists the father foreseeing that the heirs may quarrel about the division of property on his death, not infrequently arranges a special contract before his death among those heirs, whereby they bind themselves to accept a certain method of partition, but such an arrangement will not usually give them a right to recover the property from their father during his lifetime and such arrangements are not binding until the parent dies and the heirs act upon it and are thereby estopped from challenging its validity . . . . . . . . . . . . .. . . . . . . . . . .,. . Parties agreeing to a family arrangement and acting upon it are estopped from questioning its validity or legality when there is no fraud, undue influence, or concealment of material things. Courts do not generally disturb a family arrangement unless it is inequitable on the face of it and unless an heir is thereby made to give up his undoubted rights for an inadequate consideration in the absence of profession assistance." I think I shall do well to mention here that the family arrangement set up by the contesting defendant in the present instance has not been attacked before me nor does it appear to have been attacked before the learned Courts below as well on the ground of fraud, undue influence, concealment of material things or inequity. The only ground on which it has been sought to be assailed is that it lacks mutuality, which is one of the essential requisites of such an arrangement. Leaving this for consideration at the appropriate stage, I would like to point out here' that although the defence, too, made a case in its pleading to the effect that Bachin and not Ucha was the Orasa son, which as shall be seen presently was rather ill‑advised though under the law when the eldest son is incompetent to assume the duties and responsibilities of the father the next son may become the Orasa provided he is otherwise fit to become the Orasa. The said defence plea cannot however, detract from or affect in any way its alternative case based on alleged family arrangement. In fact this appears to be the substantive defence or main plank of the defendant. Thus the dispute between the parties boiled down to the question as to how the property passed on Shujau's death, i.e., whether it passed in accordance with the family arrangement as alleged by the defendant or whether there was no family arrangement at all and the suit property passed to the pro -defendants Nos. 3 and 4 according to the Burmese Buddhist Law and so far as this is concerned, both the Courts below, as has already been indicated above, have upheld the family arrangement set up by the defence and dismissed the plaintiff's claim accordingly. Mr. Nurul Huda, appearing on behalf of the plaintiff‑appellant, has, however, tried to attack the judgment of the learned lower appellate Court firstly on the ground that its finding affirming that of the learned trial Court that there was a family arrangement as pleaded by the defendant, cannot be regarded as a proper one and that even if that were so, it is not legally effective. He has secondly contended that the decision of the learned lower appellate Court cannot also be supported inasmuch as it has not made any specific finding on the controversy between the parties as to whether the pro‑defendant No. 4 was the Orasa son of deceased Shujau. As to the first contention a perusal of the judgment of the learned lower appellate Court appears, however, to show that the learned Court has actually discussed the oral and documentary evidence bearing upon the factum of the disputed family arrangement and made its decision thereon on a proper consideration of all such materials brought on record by the contending parties. It appears that the pro‑defendant No. 4 Ucha filed a petition on 15‑10‑52 before the Rent Controller in respect of a house occupied by one Abdul Bari as a monthly tenant admitting therein in express terms the fact of the family arrangement, referred to above. It further appears that in that case all the other heirs of Shujau also entered appearance and admitted the family arrangement, referred to in the petition of Ucha. The latter appears to have appeared through Babu Jotishar Chakraborty, pleader, while the other heirs of Shujau appeared through Mvi. Imtazul Huq, pleader. Both the learned pleaders have actually been examined in the case. Their evidence is that they appeared on powers executed by their respective clients and filed Solenama whereby the tenant, mentioned above, i.e., Abdul Bari, agreeing to purchase the premises in his occupation advanced a sum of Rs. 100 to Ucha. It further appears from the evidence on record that the different heirs of Shujau got specific properties each and some of them have sold some of the properties falling in their respective shares to certain third parties who are actually in possession of the same. It also appears that pursuant to the compromise petition, referred to above, Ucha later conveyed the house himself alone to Abdul Bari and Abdul Bari has since been in possession of the same in his own right. There is also evidence on record to show that under the family arrangement Bachin got the disputed plot with the shoproom standing thereon, made the said room which was one‑storeyed into a two‑storeyed one, and exercised acts of possession thereover by letting out the same to different tenants and realising rents from those tenants. There is also evidence to show that the said family arrangement was effected in pursuance of the directions given by Shujau before his death. It appears that both the Courts below have most elaborately and critically examined the oral and documentary evidence thus brought on record by the contending parties and ultimately arrived at the concurrent finding that the heirs of Shujau entered into the said family arrangement in accordance with the directions given by Shujau himself before his death. In other words, their finding is that by the said family arrangement the heirs of Shujau merely acted upon the directions by him. Thus having regard to the discussions made by the learned Subordinate Judge as well as the learned Munsif in their respective judgments, I am unable to entertain the criticism levelled by Mr. Huda that the learned lower appellate Court has not discussed all the relevant materials bearing upon the factum of the disputed family arrangement or that the finding made by him thereon cannot on that account be regarded as a proper one. Reference has already been made to the relevant law governing a family arrangement amongst the Burmese Buddhists and it has also been observed that the one set up in the present instance has not been attacked on the ground of fraud, undue influence, etc. It has, however, been contended, as was done before the learned Courts below as well, that the family arrangement pleaded in this case, even if that were a fact, cannot be said to be legally effective for want of mutuality. In this behalf reliance has been placed upon the case of Taung Min and others v. Ramkumor Ram and others (A I R 1934 Rang. 176), wherein it has been held:‑ "The parties to a family arrangement must be persons who have a right in the property in regard to which the arrangement is made and there must be mutuality among them in the arrangement so as to make the arrangement binding on all of them." It is, however, important to remember that this was laid down in a litigation wherein the plaintiffs were the Kanitta children of the deceased who left surviving him a daughter by his first wife and his second wife and six children by her and the plaintiffs preferred their claim on the basis of a family arrangement effected as amongst the different heirs of the deceased after his death though they had till then acquired no interest in the property. In the present case before me the family arrangement,' though effected after the death of the deceased, was made in' accordance with the directions given by him before his death., Thus the authority cited by Mr. Huda appears to me to be clearly distinguishable and cannot have application to the present case wherein the deceased himself gave the directions for the disputed family arrangement his heirs thereby only acted upon the directions thus given by him. When it is thus found by the learned Courts below that there was in fact a family arrangement effected among the heirs of Shujau and that the said family arrangement is legally effective and that finding, as indicated above, is fully supported by evidence, the question whether the pro‑defendant No. 4 Ucha was or was not the Orasa son really becomes immaterial, inasmuch as the said family arrangement must prevail, even if the said pro‑defendant were found to have been the Orasa son. I may, however, proceed to point out that in this behalf, too, both the Courts below have actually found against the plaintiff- appellant and the contention of Mr. Huda that the learned lower appellate Court has not considered the controversy relating to this aspect of the dispute between the parties, i.e., whether Ucha was the Orasa son of Shujau, cannot be said to be correct, as may be seen from the following extract from the judgment of the learned Subordinate Judge: "Because Ucha is the eldest son it does not necessarily follow that he must be the Orasa son also; the evidence about his being the Orasa son is not really very reliable. It is true that two men of the community one of whom is Sujau's son in law come to prove. But though the witnesses are good in that respect, their evidence is weak. One of the basis of the plaintiffs claim that Ucha was the Orasa son is that Bachin was a drunkard and worthless fellow. But none of the P. Ws. are able to prove that they saw him drinking wine and even P. W. admits that Bachin used to realise rents P. W. 2 had to admit that he simply heard from his wife that Ucha looked after his father's property and realised rents from the tenants. Uchin who is P. W. 3 could not say who realised rents from the tenants of house of Shujau. He said because he saw Ucha living in the house of his father, so it presumed that he looked after his father's properties and carried on his father's business. It is the case of the defendants that Ucha was not married in his father's house and lived mostly with his father‑in‑law. P. Ws. 2‑3 who did not attend the marriage of Ucha could not say where he was married. P. W. 3 could not even deny that Ucha lived in the house of his father‑in‑law. So the evidence about Ucha having been the Orasa son is not really satisfactory." I may also point out that this finding as much as the entire judgment of the learned Subordinate Judge is one of affirmance, and the learned Munsif, too, it appears, has discussed the oral and documentary evidence bearing upon this point most elaborately and on a careful consideration of the same taken the view that although the fact that Ucha was living in his father‑in- law's house, i.e., separate from his father, could not be a disqualification for him to be the Orasa son, he could not accept him, i.e. Ucha, as having been so, inasmuch as it is established that he did not actually help his father in the acquisition of his properties or in the discharge of his responsibilities. Mr. Huda also argued that the learned Court below has not considered whether the kabala, under which the contesting defendant claims his title to the disputed land, actually relates to the plots to which the said land appertains, particularly when on the admission of the defendant himself, the plots, mentioned in the said document, were different, which of course the defendant tried to explain on the theory that through inadvertence the scribe inserted plots Nos. 1628‑1631. instead of plots Nos. 1632‑1634. The important point falling to be determined in the case, as has already been made abundantly clear, was whether the plaintiff was able to establish his title on the basis of his purchase from the pro‑defendants Nos. 3 and 4, and since he failed to do so, he cannot obviously succeed in respect of any of the reliefs sought by him, no matter whether the defendant No. 1 has or has not acquired valid title to the disputed plot by the kabala, on the basis of which he preferred his claim. In that view of the matter, it was not really necessary for the learned Courts below to go into this question. Thus the dispute between the parties appears to me to rest concluded by the concurrent findings of fact which, as has already been made clear above, have been arrived at on a proper consideration of all the relevant materials on record. In the result, the appeal is dismissed with costs and the judgment and decree, appealed from, are armed. K. B. A. Appeal dismissed.