- (1.)Two ladies, Giribala and Radharani Debi inherited an estate from their father, who was governed by the Dayabhaga School of Hindu law. They sued the appellant for arrears of rent for 1335 to the Augrahyan Kist of 1338 B.S. The suit terminated in a consent decree passed on 26 September 1932 for the amount of Rs. 1508. Rs. 400 was paid by the appellant on the date of the decree and the balance was made payable in three instalments in the following manner: (i) Rs. 369 in Sraban 1340 (July-August 1933)(ii) Rs. 369 in Sraban 1341 (July- August, 1934)(iii) Rs. 370 in Sraban 1342 (July. August, 1935). The first two instalments were paid. The present execution started on 19 August 1938 is by Eadharani alone for the recovery of the third instalment. Giribala was dead at the time, she having died on 2nd July 1938. Binapani the daughter of Giribala is heir to her stridhan properties. She applied to the executing Court on 5 September 1938 to be added as a party to the proceedings, but her application was refused. Her object, as expressed in her application, was to certify a payment said to have been made to her mother in full satisfaction of her claims under the decree.
(2.)The objection of the judgment-debtor appellant raises only one point, namely whether Radharani could execute for the whole of the balance due on the decree. He could not plead any payment out of Court to Giribala as alleged by Binapani, as his application for having the said payment certified would be out of time. The objection raised by him depends upon the question whether rent left unrealised by Giribala passed to her sister Radharani by survivorship. Both the Courts below have answered this question in favour of Radharani on the ground that an estate inherited by two or more females from a male is taken jointly and passes on the death of one of them to the others by survivorship. In our judgment this by itself does not dispose of the question in controversy.
(3.)It is settled law that two or more females inheriting from a male take under the Hindu law a joint estate and on the death of one of them her interest passes to the rest by survivorship, unless by an arrangement between them the right of survivor, ship had been relinquished: K6ailash Chandra V/s. Kashi Chandra (1897) 24 Cal. 339 and Parbati Kuer Baij Nath Prasad (1936) 23 A.I.R. Pat 200. The income of the estate however belongs to them absolutely and may on the death of one or of all of them have a different direction from the corpus. This aspect of the question has been over-looked by both the lower Courts. The decided cases relating to the income accruing during the life-time of a female heir who has by inheritance taken a limited interest in the corpus can be classified under two main heads: (i) when the income had been received by the female herself or by some one on her behalf or held by some one who can be regarded as holding the same on her behalf and (ii) when the income has not been realized at all, the tenants and other persons liable to pay not having paid. There are many decided cases falling within the first head; decisions dealing with the second case are very few in number.