Allahabad High Court
Ghisiawan Pande vs Musammat Raj Kumari And Ors. on 9 March, 1921
Equivalent citations: 63IND. CAS.556
JUDGMENT
1. On the 4th of November 1920 a Bench of this High Court sent bask this case to the learned Subordinate Judge for him to decide one issue, which was whether the plaintiff (who admitted for the purposes of that issue that Nageshar Ram was the son of Chander Ram and Musammat Raj, could in the circumstances maintain the action for a declaration that a sale deed executed by Musammat Raj Kumari and Nageshar Ram would not operate against him after the death of Musammat Raj Kumari. The learned Subordinate Judge has considered the law and the circumstances and has decided that it is competent to the plaintiff to ask for such a declaration. We are of opinion that his decision is right and that the plaintiff is entitled to the declaration for which he has prayed.
2. Referenda was made to the case of Bajrangi Singh v. Manokarnika Bakhsh Singh 30 A 1 : 9 Bom. L.R. 1348 : 13 C.W.N. 74 : 17 M.L.J. 605 : 6 C.L.J. 766 : 5 A.L.J. : 3 M.L.T. 1 : 11 O.C. 78 : 35 I.A. 1 (P.C.) as embodying the correct proposition of law, namely, that an alienation by a Hindu widow with the consent of the next reversioner was binding as against the remoter reversioners and binding apart from legal necessity. Our attention was, however, drawn to the later case of Rangaiami Gounden v. Nachiappa Gounden 50 Ind. Cas. 498 : 42 M. 523 : 36 M.L.J. 493 : 17 A.L.J. 536 : 29 C.L.J. 539 : 21 Bom. L.R. 640 : (1919) M.W.N. 262 : 26 M.L.T. 5 : 10 L.W. 105 : 46 I.A. 72 : 12 C.W.N. 777 (P.C.), where the sages are considered in detail. The result of the rulings is summarised at pages 53 Pages of M.--[Ed.] and onwards. At page 536 Pages of M.--[Ed.] there is a summary of the circumstances under which alienations by a widow of her deceased husband's estate can be supported.
3. We are of opinion in the present case that as the Court below found as a fast upon evidence that the transfer of the 29th of February 1916 was not a transfer for valid legal necessity, the joining in of Nageshar Ram, who wag then the next reversioner, did not give to Musammat Raj Kumari the power to make that conveyance. The finding of fact that there was no legal necessity has nor been shown to us to be incorrect and we view it with approval. We are, therefore, of opinion that both on the facts and on the law the learned Subordinate Judge same to a correct conclusion as to the right of Ghisiawan to claim a declaration,
4. When the matter was sent down by this Court in November of 1920, Mr. Kamla Kant Varma definitely reserved to himself the right to argue that the Judge name to an incorrect conclusion of fact as regards the relationship which Nageshar Ram bore to Musammat Raj Kumari, and he has argued to-day the point which he then reserved. It is admitted that Musammat Raj Kumari had a daughter by name Musammat Raji. Equally it is admitted that her husband was Chandra Bam. The plaintiff says that Chandra Ram by another wife Musammat Ram Dei has a son Nageshar Bam, defendant No. 7, the defendant on the other hand says that Musammat Raji and Chandra Ram had a son Nageshar Ram and a daughter Musammat Rekha.
5. The issue of fast before the learned Subordinate Judge, therefore, was, it being admitted that Chandra Ram was the father of Nageshar Ram, who was the mother--Musammat Raji or Musammat Ram Dei. In 1909 Musammat Raj Knmari was minded to make a charitable gift of a small portion of land to a Brahman woman and speaking of the remaining portion of the share as to the total area of which there is no record, she says "the remaining share is in the possession of my daughter's son.' The daughter was undoubtedly Musammat Raji. If the daughter's son was not Nageshar Ram, he was a person whose name has never been mentioned by either party in the case. Some question must have arisen as to the name and Musammat Raj Kumari at once said "the name of my grandson is Nageshar Prasad" (Nageshar Prasad is agreed to mean Nageshar Ram). Therefore, in 1909, some seven years before this action was commenced, Musammat Raj Kumari was giving the genealogy of Nageshar Ram as to which there was as that time no dispute whatever. Again in August 1913, having filed a plaint, she set out definitely and completely the relationship, bringing in the fact that her daughter Musammat Raji had married Rim Chandra and stating the two children Nageshar Ram and Musammat Rekha as the issue of that marriage. In her evidence given, in January 1917 she again confirmed that the relationship of Nageshar Ram and Musammat Raji was that of son and mother.
6. As against this it is said that in September 1912, when undoubtedly there was some ill feeling in the family, she had in a copy of a petition omitted all mention of Musammat Raji, her own daughter, and of Nageshar Bam, her grandson: but had referred to her granddaughter Rekha as her daughter and stated that Musammat Rekha after Musammat Raj Kumari's death would be the heir to her property. It is undoubted that she made that statement but we have examined the circumstances, and it is perfectly clear that it was a petition instigated by Jagatar Pande and the daughter who may very well have nourished designs for obtaining the grandmother's property filter her death. At all events her definite statements in 1909, in August 1913, and in January 1917 cannot be disregarded. It is hardly necessary to say that Musammat Ram Dei has not been produced, and the evidence, if any, of her even having existed has not been mentioned to us in argument. In these circumstances we are of opinion that the learned Subordinate Judge same to a right conclusion of facts as regards the pedigree of Nageshar Ram and this appeal must, therefore, be allowed to the extent that it must be declared that in the event of the plaintiff surviving Musammat Raj Kumari, the sale deed of the 29th of February 1916 will not be binding upon him. The appeal as regards the finding of fast as to Nageshar Ram's relationship with Musammat Baji is dismissed. Under the circumstances we direct each party to bear their own costs here and below.