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Ghisiawan Pande Vs. Musammat Raj Kumari and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad
Decided On
Judge
Reported inAIR1921All33; (1921)ILR43All534
AppellantGhisiawan Pande
RespondentMusammat Raj Kumari and ors.
Excerpt:
hindu law - hindu widow--alienation by widow--consent of the then nearest reversioner not sufficient to validate the alienation if thereis no legal necessity. - .....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. reference was made to the case of bajrangi singh v. manokamika bakhsh singh (1907) i.l.r. 30 all. 1 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......
Judgment:

Grimwood Mears, Kt. C.J. and Pramada Charan Banerji, J.

1. On the 4th of November, 1920, a Bench of this High Court sent back 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 Chandar Ram and Musammat Raji, 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. Reference was made to the case of Bajrangi Singh v. Manokamika Bakhsh Singh (1907) I.L.R. 30 All. 1 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 Rangasami Gounden v. Nachiappa Gounden (1918) I.L.R. 42 Mad. 523 where the cases are considered in detail. The result oilihe rulings is summarized at page 535 and onwards. At page 536 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 fact 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 was 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 not 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 came to a correct conclusion as to the right of Ghisiawan to claim a declaratian.

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 came 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. [The judgment then proceeded to deal with this issue of fact.]

5. In these circumstances was are of opinion that the learned Subordinate Judge came to a right conclusion of fact 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 fact as to Nageshar Ram's relationship with Musammat Raji is dismissed. Under the circumstances we direct each party to bear their own costs here and below.


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