Patna High Court
Mt. Akhaj And Ors. vs Arjun Koeri And Anr. on 5 April, 1951
Equivalent citations: AIR1952PAT67, AIR 1952 PATNA 67
JUDGMENT Lakshmikanta Jha, C.J.
1. This is an appeal by the defendants under the Letters Patent from the judgment of Shearer, J. in a second appeal arising out of a suit for a declaration that a deed of gift executed by defendant No. 1 holding a Hindu woman's estate as a daughter is not binding on the plaintiff's as reversionary heirs of the last male owner.
2. One Ramprasad Koeri, who was governed by the Mitakshara school of the Hindu law, died possessed of certain property; including the suit land in or about the year 1920, leaving behind his widow, Musammat Kubri, and a daughter, Musammat Akhji (defendant No. 1).
3. Akhji was married to one Baldeo Koeri, who died in Ramprasad's lifetime, and on his death she took another husband Aliar Koeri, who left his native village and came to live with Ramprasad as his 'ghardamad.' On the death of Ramprasad, his widow came in possession of his property, but ?he died about a year after.
4. Admittedly, on the death, of Ramprasad's widow a dispute arose in respect of his property. One Mahabir, father of the plaintiffs, put forward his claim to immediate possession as the next reversioner of Ramprasad; on the other hand, the said Aliar claimed to be in possession. The dispute was referred to arbitration and the arbitrators divided the property between the claimants.
5. The plaintiffs' case, however, in short, is that the dispute was between Mahabir and Akhji and the arbitrators divided the property between them, giving one moiety absolutely to Mahabir and the other to Akhji for life in lieu of her maintenance. According to the plaintiffs, therefore, Akhji has only a life estate in the property given to her by the arbitrators in lieu of her maintenance and, therefore, the deed of gift executed by her on the 1st May, 1946, is not binding on them as the presumptive reversionary heirs of Ramprasad.
6. The case of the defendants, on the other hand, is that on the death of Musammat Kubri (Ramprasad's widow), Musammat Akhji did not exercise her right of possession as a daughter and allowed her husband, Aliar, out of deference to the wishes of her father, to take possession of the entire heritage. According to their case, the dispute was between Mahabir and Aliar, and the arbitrators divided, the property between them giving one moiety to Mahabir absolutely and the other moiety absolutely to Aliar; the latter remained in possession of the disputed property as absolute owner for over twenty years; and on his death the property was inherited by defendant No. 1 as his widow, who remained in possession till she made a gift of the same to defendants Nos. 2 to 5, who are the grandsons of her first husband's brother. The plaintiffs, therefore, are not entitled to the declaration sought.
7. The trial Court decreed the suit, holding that Akhji got only a limited interest and that Aliar acquired no title over the land at any time. On appeal, the learned Subordinate Judge, before whom it came up for hearing, dismissed the suit. He was of opinion that "in the absence of any explanation given by the plaintiffs it is reasonable to expect that the dispute was really between Aliar and Mahabir and that the compromise was effected as stated by the defendants by way of bona fide settlement of family dispute", and he found as a fact that "Aliar acquired an absolute interest in respect of half of the properties held by Ramprasad and that the defendant No. 1 has come in possession of the same as an heir of Aliar and not as an heir of Ramprasad",
8. On second appeal by the plaintiffs, Shearer, J. set aside the judgment of the Court of appeal below and decreed the suit. He considered that "the lower appellate Court was, however, plainly in error in supposing that the possession of Aliar Koeri was, in consequence, adverse to the reversioners".
In his view "It is not open to a limited owner to divide the estate with the existing nearest reversioner, nor, of course, is it open to her to relinquish the whole of her interest in the 'estate and allow it to be divided between the nearest reversioner and a third person."
Accordingly he held that the deed of gift was not binding on the plaintiffs and that, even if there was an estoppel against Mahabir, the plaintiffs, who claimed not as heirs of Mahabir, but as the nearest reversioners of Ramprasad, were not estopped from challenging the deed of gift executed by defendant No. 1.
9. The plaintiffs' claim as reversioners must fail, if there was already a valid surrender by Akhji of her interest when succession opened to her on her mother's death. The point for determination therefore is as to whether she relinquished her estate when succession opened on her mother's death.
10. Relinquishment or surrender does not require any writing. It may be effected by a limited owner under the Hindu law by any voluntary act which may operate as her civil death. if a limited owner dies a natural death, the heirs of the last male owner succeed, and the same result follows if she dies a civil death. Therefore, relinquishment by a limited owner of her interest simply extinguishes her own right and does not create any interest in favour of the next reversioner. It simply causes her civil death and the next reversioner succeeds by operation of law. The Judicial committee observed in 'Rangaswami Goundan v. Nachiappa Gounden', 46 Ind App 72 "It is settled by long practice and confirmed by decision that a Hindu widow can renounce in favour of the nearest reversioner if there be only one at the moment. That is to say, she can, so to speak, by voluntary act operate her own death."
11. It may be stated that in many decisions, including the decision in Gounden's case', it has been observed that the surrender must be in favour of the nearest reversioners. But by this observation their Lordships did not mean to lay down that the limited owner by her relinquishment creates any right in the reversioner, and this is clear from the later decision of the Privy Council in 'Sitanna v. Viranna', 61 Ind App 200 at pp. 207-8, where their Lordships observed 'But though the doctrine of surrender by a widow has undergone considerable development in recent years, it must be remembered that the basis of it is the effacement of the widow's interest, and not the 'ex facie' transfer by which such effacement is brought about. The result is merely that the next heir of the husband steps into the succession in the widow's place."
The same view has been reiterated in 'Radharani Dassya v. Brindarani', 43 Cal W N 337 at p. 346.
12. Unquestionably, Akhji did not assert or exercise her right of possession on her mother's death. Her case, as alleged in her written statement, is that it was the wish and direction of her father that Aliar should get possession of his entire property on Musammat Kubri's death and accordingly after her death, "Aliyar Koeri entered in possession of the entire property left by Ramprasad Koeri in accordance with his desire and direction."
In other words, when succession opened on her mother's death, she disclaimed all interest in her father's property. Such disclaimer on her part, in my opinion, operated as her civil death and accelerated the succession of Mahabir who was the nearest reversionary heir to her father's estate at the moment. According to the finding of the learned Subordinate Judge, which was binding in second appeal, the dispute cropped up between Mahabir on the one hand and Aliar on the other, and division of the property was between them. This finding necessarily implies that Akhji was not in the picture at all. In the face of this finding, Shearer, J. was not justified in holding that the dispute was between Mahabir and Akhji and the arbitrators divided the property between them -- this was the plaintiffs' version of the panchayati which was definitely disbelieved by the learned Subordinate Judge. When Mahabir entered into an arbitration and allowed the property to be divided by arbitrators, he dealt with his vested interest and not with mere 'spes successions'. In my opinion, the estate vested in Mahabir on Kubari's death and it was open to him to allow a part of the estate to go to Aliar to purchase peace and put an end to all disputes over the property of Ramprasad. The division of property between Mahabir and Aliar and allotment of specific portions to the latter cannot, therefore, be challenged by the plaintiffs, even if the transaction by which the division was effected be not-supportable as a family arrangement. I am accordingly of the opinion that the plaintiffs' suit is not maintainable. In this view, it is unnecessary to decide the other points raised before us. The appeal is, therefore, allowed and the suit is dismissed with costs throughout.
Chatterji, J.
13. I agree that the appeal should be allowed, but I should like to give my own reasons.
14. Admittedly, a dispute arose with regard to Ramprasad's property on the death of his widow. According to the plaintiffs, the dispute was between Mahabir, on the one hand, and Akhji, on the other, whereas according to the defendants it was between Mahabir and Aliar. The lower appellate Court accepted the defence version. It is not disputed that Aliar 'was living with Ramprasad's family as 'ghar-damad'; as such, he was treated as one of the family. According to the defendants' case, Ramprasad in his life time had expressed his wish and directed that after his death and the death of his wife, Aliar should come into possession of his entire land, and in accordance with his desire and direction Aliar came into possession on the death of his widow. If he actually came into possession, as alleged, Akhji must be deemed to have relinquished her interest, in that case, Mahabir who was then the nearest reversionary heir of Ramprasad would come in as such heir. It is apparently for this reason that dispute arose between him and Aliar. Akhji was obviously interested in the cause of Aliar, her husband. There was thus a bona fide dispute with respect to Ramprasad's property in which all three were concerned. Neither Mahabir nor Aliar could, in the circumstances, be regarded as a stranger to the family. When, therefore, the dispute was referred to arbitration and there was an award, it cannot but be regarded as a family arrangement. There can be no doubt that it was a fair and honest settlement.
15. In 'Sitanna v. Viranna', 61 Ind App 200, a settlement come to between the widow and a claimant, an alleged illatom son-in-law of her husband's father, was upheld by their Lordships of the Privy Council. There, on the death of a Hindu, a dispute arose between his widow and his sister's husband who claimed to be his father's illatom son-in-law. The dispute was referred to arbitration and there was an award by which the estate was partitioned between the widow and the said claimant. On the death of the widow, the reversionary heir of her husband brought a suit claiming the whole estate, impleading the alleged illatom son-in-law as defendant No. I. The latter's claim based on illatom adoption was rejected by the Courts, but his right by virtue of the award was upheld. Their Lordships said:
"Looking at the evidence as a whole, their Lordships see no reason for doubting that the award was a fair and honest settlement of a doubtful claim based both on legal and moral grounds, and are therefore of opinion that there are no grounds" for interfering with it."
16. In the present case, the plaintiffs themselves in their plaint accepted the panchayati as valid and binding, though, of course, they asserted that the dispute was between Mahabir and Akhji and the latter got the land in suit in lieu of maintenance. Reading paragraphs 3, 4 and 7 of the plaint, it is quite clear that the plaintiffs, far from disputing the panchayati, based their claim on the footing that there was a valid and binding panchayati, in the first two Courts, the case also proceeded on that footing, and the first appellate Court formulated the point for decision thus:
"The only point for determination is whether the plaintiffs' or the defendants' case of panchayati is true and whether the plaintiffs are entitled to the declaration sought for".
In my opinion, this was a right approach to the case. The plaintiffs cannot now be permitted to resile from the position they took in the plaint as well as in the first two Courts.
17. In the circumstances, I see no reason why the panchayati should not be regarded as a fair and honest settlement and as such binding on the estate, and, therefore, on the plaintiffs.