Patna High Court
Maharaw Kesho Prasad Singh Bahadur vs Chandrika Prasad Singh And Ors. on 3 August, 1922
Equivalent citations: 68IND. CAS.394, AIR 1923 PATNA 122
JUDGMENT Dawson Miller, C.J.
1. There appeals arise out of two suits, numbered 3 and 8 of 1919, which were tried before the Subord(sic)ate Judge of Shababad. They were instituted by the appellant, plaintiff, claiming to redeem two zurpeshgi mortgages op leases or Mauzaz Singhanpura and Magazpura respectively of whish be cLalms to be proprietor to the extent of two-thirds of the interest. The proprietors of the other one third share are soma of the defendants in the suit. Amongst the defendants are also the representatives of the original zarpeshgidars who have acquired their interest either by survivorship op purchase from those interested. The villages in question formerly belonged to Sheo Dayal Singh who died ehildless many years ago Having two widows who succeeded to his estate. The elder of the two died in 1872 leaving the younger, Bahuria Rikeba Kuer, in sole possession of the estate. On the 18th October 1675 Rikeba Kuer executed a deed of gift of the two villages in question, together with otter property formerly be-longing to her husband, in favour of sheo Lochan Singh, a relative of her deceased husband who had Jived with, and been brought up by her since infancy. The pLaln-tin's interest in the two-thirds share of the two villages in question is derived by purchase from Sheo Lochan Singh under a deed of gale dated the 11th April 1890. The gift by Rikeba Kuer to Sheo Lochan appears "to have been made with the sanction and approval of most, if not all, of the members of the family. It is further stated in the pLalnt and in the verbal evidence that two of the three reversioners of Sheo Dayal Singh, namely, Thakur Dayal Singh and Raj Nath Singh, executed a deed of relinquishment of their shares of the inheritance in favour of Sheo Lochan in the year 1877 during the widow's lifetime. This deed, however, was not produced and was not strictly proved, However that may be, it is not disputed that from the time when Rikeba made the gift in 1877 up to the present moment, neither of the two reversioners named whose interest vested on Rikeba death in 1880 has made any attempt to dispossess Sheo Lochan or the pLalnff who cLalms through him, and it is too late now to question the validity of the gift to Sheo Lochan to the extent of the two-thirds share in the estate.
2. The third reversioners, however, Saheb Singh, insisted upon enforcing his right to a third share in the property and for the puree se brought a suit against Sheo Lochan for possession of his third share together with mesne profits which wag finally determined in his favour on appeal to His Majesty in Council. The decree ho obtained by Saheb Singh wan eventually executed by his grandsons, Lachmi Prasad Singh and Chandrika Prasad Singh, after his death and they obtained possession of the respective properties awarded to them under the decree. The two villages mentioned were, however, subject to the zarpeshgi mortgages or leases, the subject of this suit. These zarpeshgis had in fast been in existence since 1873, that is before the gift of 1875 to Sheo Lochan, and were granted by Rikeba Kuer to the zarpeshgidars. Accordingly the gift to Sheo Lochan in 1875 was subject to these zerpeshgis as also is the plaintiff's interest derived from Sheo Lochan. That relating to Singhan-pura is dated the 8th July 1873 and wag granted to Lal Bisweswar Dayal, Jaiprakash Lal arid Beni Prasad whore grandsons now represent them, being the defenlanis Nos. 5 to 9 in Suit No. 2 of 1919, one of those now under appeal. It rscites that the executant has let oat in ijare to the zarpeshgidars at the annual rental of Rs. 483 the entire 16 annes of Mauza Singhanpnra for a term of 9 year from 128t to 1239 F. (corresponding to 1873 to 1882) and that she has taken from the lassees Rs. 3,701 bearing interest at 1 per cant. per month, and it provides that the zarreshgidars should deduct from the annual rent Rs. 444 on account of interest on the zarpeshgi and pay the balance, Rs. 39, to the executant her heirs and representatives. It provides also that the executant shall not pay off the zarpeshgi for 9 years, the terms fixed for the lease, and if she fails to pay the zarpeshgi in one lump sum by the end of the terms the tiare settlement shall s'and good and remain in force as it is and when she shall pay off the zarpeshgi by the end of Joyth in any year the I(sic)are a shall be cancelled.
3. That relating to Magazpura was of similar impost. It is dated the 30th June 1873 and related to Magazpura and one other village called Gharbair. The rental is this case was Rs, 852 and the term was for 15 years from 1281 to 1295 F. The zerpeshgi money advanced was Rs. 6,750 and the interest at, I percent. per month amounting to Rs. 810 was to be deducted from the rent by the zarpeshgidarz and the balance of Rs. 42 was to be paid annually to the executant. The zarpeihgidars in this case were Thakur Singh, Debi Dayal Singh and Sham Behari Singh, who are now represented by their dascendants, the defendants Nos. 4 to 11 in Suit No. 8 of 1919, the defendants Nos. 1 to 3 in that suit being purchasers from the other defendants.
4. After obtaining their decree in the Privy Council and after the death of Saheb Singh his grandsons, Lashmi Prasad and Chandrika Prasad Singh, also institutad suits against the zarpeshgidars of both villages for a declaration that the zarpeshgis were not binding upon their grandfather, Saheb Sing to the extant of his one-third share and for possession and mesne profits. In these suits they were successful and get the zarpeshgis annulled as to their third share and obtained possession in or about the year 1894. In. 1895 they also required the remaining two-thirds interest in the zarpeshgi of Magazpura at a sale in execution of a decree against the zarpeshgidars. It is further the case of the plaintiff that Lashmi and Chandrika also required on, of the remaining two-thirds share in the zarpeshgi of Singhanpura the interest of Beni Prasad, one of the zarpeshgidars, from his grandson and repre "sentative Ambika Prasad, the defendant No. 9 in Suit No. 3. This is denied by the defendants Nos. 1 to 3. Lachmi Prasad Singh died before the present suits were instituted but Chandrika, the defendant No. 1 in bath suits and the defendants Nos. 2 and 3 in bath suits, with whom he was joint in estate, are his legal representatives. It would appear, therefore, that the whole body of zarpeshgidars are represented as defendants in the suits whether the interest of Beni Prasad Singh was transferred to Lachmi and Chandrika or not, the representatives of the other zarpeshgidars, Lal Bisweswar Dayal and Lal Jaiprakash Lalla being the defendants Nos. 4 to 7 in Suit No. 3. It was contended, however, by the defendants Nos. 1 to 3 that Beni Prasad's interest in Singhanpura was purchased by one Janki Prasad Singh and that as he is not a party the suit for redemption is bad for non-joinder. Janki is admittedly a near relation of Chandrika, the first defendant, and it is suggested that if Bani Prasad' share was prasad's in the name of Janki it was a benami translation on behalf of Chandrika and his co sharers. The only point about which we can be certain is that Chandrika has been in possession all along. No document has been produced showing the alleged sale. Verbal evidence as to the sale is conflicting and unsatisactory on both sides and it is impossible to say whether Beni Parasad's interest has been transferred at all. The probabilities point in favour of the plaintiff's version as the defendant Chandrika has been in possession. It is unnecessary to decide this point because it is clear that for much more than 12 years before the suit was instituted the defendants Nos. 1 to 3 have been in possession of Beni Prasad's interest with was that of a zarpeshgidar and have acquired an indefeasible title thereto. They must accordingly be regarded as such,
5. The learned Subordinate Judge who tried the suit dismissed it upon various grounds. He considered that the zarpeshgi deeds having' been declared, by a Court of competent jurisdiction, invalid as against the reversioner, Saheb Singh, as they were executed by Rikeba Kuer without legal necessity, they must be considered invalid for all purposes. He further held, by a chain of reasoning, which I am unable to follow, that the conveyance to the plaintiff by Sheo Lochan in 1890 of the two-thirds interest in the Mauzas did not convey the right to redeem the mortgages. The deed purports to transfer "all zemindari rights appertaining to the said mahals, save and except those prohibited by Government, and all arrears due from tenants and ticcadars of the sail mahals up to this day, together with the decrees passed by the Court, the kasht lands, orchards and houses purchased at auction-sale by me (the vendor) in satisfastion of my decrees, as also the houses and orchards situate in the said mahals, etc. etc., as par boundaries given below." The learned Judge apparently interpreted the words "and all arrears due from tenants and ticcadars of the said mahals up to this day" as being governed by the words "save and except" which from the context would not appear to be justified, but even assuming the arrears of rent, etc., from tenants and ticcadars up to the date of sale were excluded I am unable to follow his reason for holding that the right of redemption would not pass with the proprietary interest to the purchaser. The learned Judge said that the words quoted were a clear indication that the right now claimed was never meant to be conveyed. He further considered that the conveyance to the plaintiff by Sheo Lochan was a sham transaction. He based this conclusion upon certain remarks appearing in a judgment of the District Judge of Shababad in 1895 in which the present plaintiff was appellant and one Nand Lal Sahu, a creditor of Sheo Lochan, who held a decree against the latter at the date of the sale, was the respondent. The question for decision was apparently whether the sale to the Maharaja who had undertaken to pay off Sheo Lochan's creditors oat of the purchase money, the bulk of whish was retained for that purpose, had undertaken to pay Nand Lal Sahu, and, if not, whether the sale was made to defeat Shao Lochan's creditors. It was found in that case that Nand Lal had an express promise from the Maharaja to pay off his debt and apparently had taken no steps to execute his decree at the time of the purchase and further that the purchase was not made in good faith. If I have rightly appreciated that judgment it was based upon an estoppel arising from the conduct of the Maharaja which induced Nand Lal to forego the enforcement of his decree against the estate of Sheo Lochan in course of transfer, with an alternative finding that if the creditors were defeated the purchase was not in good faith. There are no fasts proved, however, in the present case upon which such a finding can be arrived at, nor would it be open to the respondents to raise such a plea. These matters, however, need not be discussed further, as the learned Vakil for the respondents admits that he cannot support the judgment on the ground that the sale by Sheo Lochan to the appellant was to defeat creditors or that the conveyance did not pass the right of redemption of the zarpeshgi. It is contended, however, that the gift to Sheo Lochan himself by Rikeba Kuer passed no interest continuing beyond the lifetime of that lady. This question will be considered presently.
6. The learned Judge also found that the zarpeshgis were not mortgages but leases and that the most that could be claimed against the lessees would be three years' rent, He did not consider the terms upon which the leases could be redeemed bat his previous findings made this unnecessary. He also thought that Suit No. 3 relating to Singhanpura was bad for non joinder of Janki, to whom reference has already been made. He fell into an extraordinary error in this respect. He said "Exhibit E shows that one Janki purchased certain zarpeshgi interest in 1898. The plaintiff cannot under the law (Section 66, Civil Procedure Code) be allowed to assert that this Court-sale was farzi and the real beneficiaries were the defendants Nos. 1 to 3." Exhibit E, is a certified copy of a sale certificate of the zarpeshgi interest not in Signhanpura but in Magezoura which was purchased by Chandrika Prasad Singh, the defendant No. 1 in execution of a decree held by him against the dessedants of the original zarpeshgidar. In addition to the signature of the Subordinate Judge the certificate also bears the signature of the sheristadar of the Court which granted it and his name happens to be Janki Smh(sic)a The learned Judge apparently mistook this for the name of the purchaser. He seems to have misapprehended at the same time both the meaning of the certificate and the scope of Section 65 of the Civil Procedure Code.
7. The respondents place little or no reliance upon the reasons given by the learned Subordinate Judge for his findings but contend that the conclusions arrived at can be supported upon other grounds. Their first contention is that Suit No. 3 of 1919 relating to Singhanpura is bid for defeat of parties. They contend that the defendants Nos, 1 to 3 never purchased the interest of Beni Prasad, one of the zarpeshgidars, from his grandson, the defendant No. 9 in that suit, but that one Janki Singh, not the sherishtadar of the Subordinate Judge of Arrab, bat another person of the same or a similar name, was the real purchaser. The evidence of this transaction is altogether unsatisfactory and cannot be accepted and, in my opinion, does not prove that Janki was the purchaser. It is admitted, however, that Janki, if indeed he purchased, never got possession of the purchased property bat that Chandrika, the first defendant, and his cosharer, the second and third defendants, took and retained possession of this share, They were well aware of the zarpeshgi, as they themselves had it set aside as to the third share of which they were proprietors through their ancestor, fahab Singh. They have admittedly collected the rents ever since in the capacity of zarpeshgidars. It was faintly suggested in the coarse of argument tint there possession was adverse to that of the plaintiff bat there is nothing to show that they. ever asserted a right as proprietors which would be adverse to that of the plaintiff and the right they have acquired either by purchase or long possession mast be treated as that of zarpeshgidars. I have already stated that, in my opinion, the defendants Nos. 1 to 3 have acquired the zarpeshgi rights in Beni Prasad's share and the suit if, therefore, nod bad for defect of parties.
8. It is next contended by the respondents that the interest of the plaintiff's vendor, Sheo Lochan, although valid daring the lifetime of Rikeba Kuer, terminated on the death of that lady, notwithstanding that the reversioners of the two thirds share have never, from the year 1880 when Rikeba Kuer died up to the present, elected to treat the transfer as void. It "is not disputed that a sale or mortgage by Hindu widow which purports to pass or hypothecate the absolute title is valid against every one except the reversioners and that unless the reversioners elect to treat it as a nullity it subsists as against everyone else. In the present ease the gift as to the two third share was never challenged by the reversioners interested in that share. It is argued, however, that a gift stands on a different footing from a sale or mortgage and certain authorities have been relied on in support of this contention. The general rule is clearly Laid down by Lord Davey in delivering the judgment of the Judicial Committee in Bi(sic)oy Gopal Mukerji v. Krishna Mahishi Debi 31 C. 329 : 11 C. W. N. 431 : 5 C. L. J. 311 9 Bom. L. Rule 303 : 2 M. U. T. 133 : 17 M. C. J. 154, 4, A, L. J. 328 : 34 I. A. 87 (P. C.). A Hindu, widow is not a tenant for life, bat is owner of her husband's property subject to certain restrictions on alienation and subject to its devolving upon her husband's hairs upon her death. Bat she may alienation subject to certain conditions being complied with. Her alienation is not, therefore, absolutely void, bat it is puma facie voidable at the election of the reversionary heir. He may-think fit to affirm it, or he may, at his pleasure, treat it as a nullity without the intervention of any Court, and he shows his election to do the latter by commencing an action Jo recover possession of the property. The alienation in question in that case was an ijara lease but there is nothing of in the judgment to suggest that any other form of alienation would not come within the doctrine applied, and it is difficult to see upon what principle a distinetion can be drawn between a gift and any other form of transfer.
9. In Bakhtawar v. Bhagwana 5 Ind. Cas. 270 : 32 A. 176 : 7 A. L. J. 121., which was relied on by the respondents, the question for decision was whether a gift made by a Hindu widow with the consent of the immediate reversioner could be impeached by a more remove reversioner. The High Court at Allahabad held that it could. They drew a distinction between a gift and other forms of alienation and held that the earlier decision of the Pall Beach of the Allahabad High Court in Ramphal. Rai v. Tula Kuari 6 A. 116 : A. W. N. (1813) 213 : 3 Ind. Dec. (n. s.) 707., had cot been overruled by the decision of the Judicial Committee in Bajrangi Singh v. Manokarnika Bakhsh Singh 30 A. 1 : 9 Rom b, R, 1348 : 12 C. W. N. 74 : 17 M. L. J. 605 : 6 C. L. J. 765 : 5 A. U. J. L : 35 I. A. 1 : 3 M. L. T. 1 : 11 O, C. 78, (P. C.), The restrictions on alienation laid down by the Fall Bench of the Allahabad High Court in Ramphal Bai v. Tula Kuari 6 A. 116 : A. W. N. (1813) 213 : 3 Ind. Dec. (n. s.) 707., had been dissented from by their Lordships in tie cue last mentioned. It is unnecessary, however, to express an opinion upon the authority of the two oases deeded by the Allahabad High Court, for, assuming that they were rightly decided, they go no further than this that the consent of the immediate reversioner to a gift by a Hindu widow does not bar the right of a more remote reversioner to challenge the transaction. They do not afford any authority for the proposition now contended for that such a gift is void beyond the lifetime of the widow even if it remains unchallenged by any of the reversioners during her lifetime or after her death. In the liter ease of Abdulla v. Bam Lal 12 Ind. Cas. 601 : 34 A. 129 : 8 A. h. J. 1318. decided in 1911 the ruling in Bairangi Singh v. Manokarnika Bakhsh Singh 30 A. 1 : 9 Rom b, R, 1348 : 12 C. W. N. 74 : 17 M. L. J. 605 : 6 C. L. J. 765 : 5 A. U. J. L. : 35 I. A. 1 : 3 M. L. T. 1 : 11 O, C. 78, (P. C.), was again discussed by the Allahabad High Court. The view there taken was that the consent of the immediate reversioners to an alienation by a Hindu widow was merely evidence from which legal necessity could be presumed, and unless rebuttal it would bind the more remote reversioners. The consent raising such a presumption must necessarily be limited to transfers for consideration. It could not be extended to gif s where there was no room for the theory of legal necessity. This also was the view expressed by the Bombay High Court in 1909 in the case of (sic)ilu Appa Nalwade v. Babaji Nam Mang 4 Ind. Cas. 584 : 11 Bom. L. Rule 1291 : 34 B. 165,. Toe whole subject of the powers of a Hindu widow to deal with her discussed husband's property was discussed by their Lordships of the Judicial Committee in 1918 in the case of Rangasami Gounden v. Nachiappa Gounden 50 Ind Cas, 493 : 42 M. 523 : 36 M. L. J. 493 : 17 A. L. J. 536 29 C. L. J. 539: 21 Bom. L. Rule 640 : 23 C. W. N. 777 : (1919) M. W. N. 262 : 26 M. L. T. 5 : 10 L. W. 105 : 48 I. A. 72 (P. C.)., and the result of the decided cases was there summarised. "A distinction is drawn between a surrender of the widow's interest in the whole estate in favour of the nearest reversioner, where the question of necessity does not fall to be considered, and the case of an alienation of the whole or a part of the estate where the consent of such reversioners as might fairly be expected to be interested to dispute the translation will afford presumptive proof of its validity. None of there cases, however, in my opinion, form a gaide to the determination of the exact question we are now called upon to decide. It is not a question between presumptive and remote reversioners. 1919 question is, whether a gift of the whole of her husband's property made by a Hindu widow, not challenged by the reversioners during her lifetime and asquiesced in by those who would take a vested interest after her death an be challenged by any one else. In my opinion, there can be only one answer to this question. It is the reversioners and the reversioners alone who can dispute the gift, If they choose to allow the property to which they are entitled, to remain in the possession of the donee that is their affair and no one else can object. If the donee remains in possession under a slum of a right for 12 years he will acquire an indefeasible title even against the reversioner. There are certain cases, however, which have been drawn to our attention where expressions have been need to the effect that a gift by a Hindu widow is void and not marsly voidable on her death. Nabakrishna Boy v. Hem Lal Boy 2 C. L. J. 144., is an instance amongst others which need not be discussed in detail in which such expressions ocsur. In all those oases the question was one of the rights of reversioners and in most of them the point' arose in connection with limitation where it was, contended that the alienation must first be set aside before the reversioner could sue for possession. Such expressions must be regarded in connection with the context and the subject-matter of the suit. It is, in a sense, permissible, though perhaps not strictly accurate, to say that the gift is void when considering its validity as against the reversioner. He may treat it as a nullity and need not sue to have it set aside before claiming possession. The true view appears to be that it is not binding upon him and he can elect to treat it as a nullity and sue for possession at any time within 12 years of his interest becoming vested without first suing to have it set aside notwithstanding Article 91 of the Limitation Act, He may, on the other hand, elect to rect it as valid but no third parson can claim this option or set up the plea that such a gift is void merely because it may have be8n but was not so treated by the reversioner. The judgment of the Calcutta High Court in Kishori Pal v. Bhushai Bhuiya 3 Ind. Cas. 78 : 14 C. W. N. 106, is, I think, an authority for this view. In my opinion the respondents' plea that the gift was void cannot be supported.
10. The next question to be determined is, whether the zarpeshgis which it is sought to redeem are mortgages or leases. Certain oases have been cited during the argument upon this question. I do not propose to go through them in detail. I think the result of the authorities as well as of the text books is that the test in such oases must be whether there is a sacured debt and a right of redemption. In a zarpeshgi lease properly so called there is an advance to the lessee in consideration of which the lessee is given possession of the land for a term during which ha recoups himself far the sum advanced and interest out of the profits of the land of which ha is put in possession. There is no question of redemption upon paying oil: an advance. The lease terminates at the expiration of the term and the lessor may re-enter as on the tarmination on any other lease. The re-entry does not depend upon the repayment of the advance nor can the property be held after the determination of the lease to secure re payment as there is nothing to repay. The translation is really one in which rent is paid in a lamp sum in advance instead of by instalments during the term. Where, however, the interest created in the lessee continues after the expiration of the term until the advance, which is essentially a loan and not an advance of rent, is re-paid, the transaction, in my opinion, has the essential charasteristics of a mortgage. It is the mortgage of a leasehold interest in the land and can be redeemed by the mortgage. upon re-payment of the advance with interest, if any is due, upon the termination of the lease, or at any time thereafter within the limitation period, just as in the case a of any other mortgage, the leasehold interest in such a ease being held as security for re-payment.
11. In my opinion, the appeals should be allowed with coats here and in the Trial Court and a decree should be passed in favour of the appellant declaring him entitled to redeem the two-thirds snare of the properties in suit upon payment of whatever may bi found due upon an account being taken between the parties. The suits will be remitted to the Court of the Subordinate Judge of Arrah for the taking of the account.
Mullick, J.
12. I agree.