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Sheo Singh and ors. Vs. Jeoni and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtAllahabad High Court
Decided On
Judge
Reported in(1897)ILR19All524
AppellantSheo Singh and ors.
RespondentJeoni and ors.
Excerpt:
act no. xv of 1877 (indian limitation act), schedule ii, article 125 - limitation--alienation--decree in a collusive suit against a hindu widow. - .....which she belonged, she married her husband's, first cousin, the defendant ghasi, who is a son of mahar singh. the allegation of the plaintiffs is that in order to transfer the property to her second husband, the device to which she resorted was that she got a suit instituted against herself by mahar singh, the father of ghasi, claiming the property of shah mul on the ground that, by reason of her second marriage, she had forfeited her right to the estate of shah mul, and that she confessed judgment and allowed a decree to be passed in favour of mahar singh, which had the effect of transferring the property from her to mahar singh. the plaintiffs say that this was an alienation by jeoni; that it was an alienation which she was incompetent to make, and the plaintiffs bring this suit for.....
Judgment:

Banerji and Aikman, JJ.

1. The only question in this appeal is whether article 125 of the second schedule of the Indian Limitation Act governs the case or article 120. The lower Courts have applied the latter article and have held the claim to he barred by limitation. The plaintiff's case was this: Musammat Jeoni, the widow of one Shah Mul succeeded to the property of Shah Mul on his death and acquired therein a Hindu widow's estate. According to the custom of the caste to which she belonged, she married her husband's, first cousin, the defendant Ghasi, who is a son of Mahar Singh. The allegation of the plaintiffs is that in order to transfer the property to her second husband, the device to which she resorted was that she got a suit instituted against herself by Mahar Singh, the father of Ghasi, claiming the property of Shah Mul on the ground that, by reason of her second marriage, she had forfeited her right to the estate of Shah Mul, and that she confessed judgment and allowed a decree to be passed in favour of Mahar Singh, which had the effect of transferring the property from her to Mahar Singh. The plaintiffs say that this was an alienation by Jeoni; that it was an alienation which she was incompetent to make, and the plaintiffs bring this suit for a declaration that the alienation is not binding on them and will not affect their rights as reversioners after the death of Jeoni.

2. The question we have to consider is whether, on the case set up by the plaintiffs, there has been an alienation by the widow within the meaning of article 125 of the second schedule of the Limitation Act. If an alienation has taken place, that article, and not article 120, will apply. It is true that the widow has not by deed transferred the property to Mahar Singh, but it is not necessary that an alienation should be made by her by written document. It is sufficient that she has done an act which has necessarily resulted in the transfer of the estate to the transferee. In this case, if the plaintiff's allegations be true, it was the act of the widow herself, namely, her collusion with Mahar Singh, which initiated the suit brought by the latter. The confession' of judgment was the next act done by her, the necessary result of which was 'the decree made by the Court. The Court had no option but to make a decree in accordance with the confession of judgment filed by her. We have no hesitation in holding that these acts of Jeoni, if established, amounted to an alienation of the property, and therefore if the plaintiffs succeed in establishing the case set up by them their suit would be governed by article 125. The only authority cited for the contrary view is a remark made by Mr. Justice Birdwood in the case of Chhaganram Astikram v. Bai Motigavri I.L.R. 14 Bom. 512. In that case there was no dispute on the question whether article 125 or 120 applied, and therefore the observations of the learned Judge were no more than obiter dicta. Whether Jeoni by her re-marriage lost her rights in her husband's estate is not a question which we are called upon to decide at this stage. If the plaintiffs succeed in showing that she did not, that would be a circumstance to be taken into consideration in determining whether the suit brought by Mahar Singh against Jeoni was a collusive suit or not. The result is that we must set aside the decrees below and remand the case under Section, 502 of the Code of Civil Procedure to the Court of First Instance, which we hereby do, with directions to readmit it under its original number in the register and to try it on the merits. Costs here, and hitherto will abide the event.


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