1. This appeal by the plaintiff gains( the judgment and decree of the learned Additional Civil Judge of Aligarh arises out of a suit for possession over certain propertyspecified at the foot of the plaint and forrecovery of damages and mesne profits past,pendente lite and future.
2. The following pedigree will be of help in understanding the facts of the case:
Shiv Dayal Singh = Mst. Jagrani Kunwar
died on 11.9.1915 | died on 18.10.1948
Harihar Dayal Singh = Kamla Devi
died on 24-10-1918 |
Bishan Dayal (plaintiff)
born on 24-10-1916
Shiv Dayal Singh executed a wilt on the 10th of September, 1916 bequeathing his self-acquired property to his wife Mat. Jagrani Kunwar. He also gave a house to his son Harihar Dayal Singh and another house to his daughter-in-law Kamla Devi. On the 11th of September, 1915, Shiv Dayal Singh died. The plaintiff, Bishan Dayal Singh, had not been born up to that date. On the 22nd of December, 1915, after his father's death, Harihar Dayal Singh borrowed a sum of Rs. 31,000/- from the Mercantile Bank of India, New Delhi (hereinafter referred to as the bank) and mortgaged the property which had been bequethed by Shiv Dayal Singh to Mst. Jagrani Kunwar. In 1917 the bank filed suit No. 30 of 1917 and obtained a decree for sale of the mortgaged property on the 29th of July, 1918, from the Court of the IInd Additional Subordinate Judge, Aligarh.
On 12th of December, 1918, Msts. Jagrani Kunwar and Kamla Devi filed suit No. 348 of 1918. In that suit they claimed to be the owners of the property mortgaged by Harihar Dayal Singh. They alleged that the latter was not competent to mortgage the same and that the decree in suit No. 30 of 1917 was not binding on them. This litigation was fought up to this court and on 16th of February, 1922, was disposed of by a Bench of this Court. A number of questions had been raised in that litigation for example whether Shiv Dayal Singh was of sound disposing mind, whether he had executed a valid genuine will and whether proper enquiry had been made on behalf of the bank with regard to Harihar Dayal Singh's competence to mortgage the property in dispute. On these questions the answers given by this Court were in the affirmative. The Bench, however, held that Mst. Jagrani Kunwar would have been entitled to the property under the will but she was estopped by her conduct from laying a claim to it. It was also held that the plaintiff could not succeed because of the provisions of Section 41 of the Transfer of Property Act. The following observation from the Judgment of this Court is relevant:
'We now come to the statutory defences set up by the Bank. Before we can agree with the learned Subordinate Judge we must come Io the same conclusion as he did as regards the honesty of the evidence of Ram Kishen Das We have looked Into the evidence very closely, we have studied the cross-examination, and we see no reason to doubt that Ram Kishen Das was telling the true story, as regards all the details of his visit to Aligarh as enumerated above. Once that position is reached then there is evidence that the two ladies being well aware that Hari Har Dayal, who was the son of one and the husband of the other, had brought the Treasurer to Aligarh for the purpose of showing him property with a view to induce through him the Bank to grant a loan. That at least was within their knowledge because of the conversation, the elder lady being told in the presence of the younger that Rs. 31,000/- was the amount Hari Har required. The position at that moment was that a will was in existence, and had at that time been handed by the Additional Subordinate Judge Babu Hanuman Prasad to the son-in-law of Sheodayal, and we can have no doubt whatever of the fact that the deceased man had made a will was quite well known to the two ladies. Yet at that interview they made no mention of the will, they suggested no adverse rights; on the other hand the elder lady urged the Treasurer to grant the loan expeditiously.'
Mst. Jagrani Kunwar died on the 18th of October, 1948, and on her death the present suit was filed by Bishan Dayal, Harihar Dayal's son, and his mother Kamla Devi. The case of plaintiff Bishan Dayal in short was that Mst. Jagrani Kunwar got only a widow's estate under the will of her husband and that on her death the plaintiff was entitled to get the property as a reversioner (his mother Kamla Devi having died during the pendency of the suit necessitating certain amendments in the plaint). The further case of Bishan Dayal was that the decrees in suits Nos. 30 of 1917 and 348 of 1918 were not binding upon him. In defence a number of pleas taken in suit No. 348 of 1918 were again reiterated viz.. the capacity of Shiv Dayal Singh to execute a will and its validity and whether it created Hindu widow's estate in favour of Smt. Jagrani Kunwar. It is, however, not necessary for us to go into these questions. The court below found that Shiv Dayal Singh executed a valid will creating a Hindu widow's estate in favour of Smt. Jagrani Kunwar and that the suit was barred by estoppel and Section 41 of the Transfer of Property Act.
3. The sole question which has been argued on behalf of the appellant is that the finding of the court below to the effect that the decree in suit No. 348 of 1918 is binding on the plaintiff Bishan Dayal is incorrect. It has been contended that the decree in that suit was given on the basis of estoppel which was something personal to the widow, Smt. Jagrani Kunwar, and that, therefore, the reversioner Bishan Dayal cannot be legally bound by it. The law on the subject is stated thus in Mulla's Hindu Law, thirteenth edition at page 231 para 199:
'Decree against widow when binding on reversioners.
A widow or other limited heir represents the whole estate in legal proceedings relating thereto. Therefore, a decree passed against her and a sale of the estate In execution of such decree is binding not only on her, but on the reversioners, even though they were not parties to the suit, provided-
(1) the suit was in respect of a debt or other transaction binding on the estate, and
(2) the decree was passed against her as representing the estate, and not in her personal capacity, 'unless', as laid down by their Lordships of the Privy Council in the Shivaaunga case (1861-63) 9 Moo Ind App 539 PC) 'it could be shown that there had not been a fair trial of the right in that suit'
Learned counsel for the appellant does not. and indeed cannot, question the correctness of the law as given in Mulla's Hindu Law. His contention, however, is that this is not a case of that kind He has submitted that the estoppel against Mst. Jagrani Kunwar was something personal to her and the decree in suit No. 348 of 1918 having been passed on that estoppel it cannot bind the reversioner. He has cited four decisions in support of his contention The first is Nirman Bahadur v Fateh Bahadur. ILR 52 All 178 AIR 1929 All 963 in that case the widow Mst Manraj Kunwari had entered into an agreement in the previous litigation admitting therein that her husband had died in a state of jointness with the result that she could only have the right of maintenance The contention on behalf of the reversioners was that the widow by virtue of the agreement ceased to have the capacity to represent the estate and, therefore, a decree passed in the suit would not bind the reversioners. This argument was accepted by a Bench of this Court Mukherji. J. observed as follows:
'The next question of importance is that of res judicata. It has been argued that Mst. Manraj Kunwar represented the entire estate of Dirgbijai Singh and a decree, although by consent, obtained against her by the first two defendants, would operate as res judicata against persons claiming as reversioners. The principle is now well recognised that the widow, although a limited owner, represents the entire estate of the last male holder and any decision obtained against her either on a fair trial on contest, or on a bona fide compromise which amounts to a family arrangement, would be binding on the estate represented by the widow. It is enough to quote one of the latest cases on the point, Khunni Lal v. Gobind Krishna Narain (1911) ILR 33 All. 356 But the case, in my opinion, has no application where the widow does not accept the position of representing the estate and agrees that there is no estate to represent Where, by wav of compromise the widow says that her husband died joint with the opposite parties and therefore, she is not entitled to possession and is entitled only to a maintenance, it cannot be said that the widow 'represented the estate' and a compromise honestly arrived at by her would bind the reversioners The reason is very simple The moment the widow says that her husband died joint, she disclaims all title to represent her husband's estate, for on her own admission than is no estate to represent. Her act, therefore, cannot bind those whose allegation is that there was such as estate and on the death of the widow that estate would devolve on them.
This decision was on the facts of the particular case. It should be borne in mind that in the course of the litigation Mit. Manraj Kunwart did something which completely altered her status and she ceased to represent the estate. The facts of the present case are quite different. Suit No. 348 of 1918 was filed by Mst. Jan-rani Kunwar and was fought tooth and that up to this court. Her remedy was certainly held to be barred but that would be no reason for holding that she did not represent the estate in that litigation. We should also like to point out that the other member of the Bench Niamat-ullah, J. did not rest decision on the ground that Mukherji, J. did. Niamat-ullah, J. agreed with Mukherji, J. with regard to the conclusion that the reversioners were not bound by the earlier litigation but he based his decision on the finding that Mst. Manraj Kunwari was a Pardanashtn illeterate lady, that the terms of the agreement were highly complex, that she could never have understood their full implications and that she could never have understood what she was agreeing to
The next case relied upon by the learned counsel for the appellant is Braja Lal Sen v. Jiban Krishna Roy, (1899) ILR 26 Cal. 286. The ratio of the decision of this case really was that the dismissal of the previous suit which was for recovery only of the limited estate of a female heir could not constitute a bar to the subsquent suit which was for the recovery of the absolute estate which vested in the reversioner. Another ground for the decision was that the widow had, on accepting a sum of Rs.2,040/-, consented to a sale being confirmed. This was considered by the Calcutta High Court to be a ground personal to the female heir. No particular reasons are given and on the facts of that case the learned Judges thought that it would not be right to hold that the dismissal of that suit was a bar to the reversioner's claim. We do not think that this decision can be of any help to the appellant.
The next case cited by the learned counsel for the appellant is Bai Kanku v. Bai Jadav, AIR 1919 Bom 146. In this case the widow had made an admission that a mortgagee had become full owner of the property mortgaged because of a 'gahan lahan' clause in the mortgaged deed, though this was incorrect in law. It was held that a decree based upon such as admission would not be binding upon the reversioners as it was something personal to the female heir. This case is again distinguishable upon facts and it has been so distinguished by the Patna High Court in Rani Bhuneshari Koer v. Secretary of State, AIR 1987 Pat 374. The admission in the Bombay court was held by the Patna High Court to be an admission on a question of law. The learned Judges said this:-
'It has been argued that the admission of Asmedh Koer was something personal to herself which could not bind the reversioners but an admission of fact creating an estoppel as opposed to an admission of law will, In the absence of fraud or collusion create an estoppel which will bind the reversioners; and the case in ILR 40 All 693 : AIR 1918 PC 87, Risal Sigh T. Balawant Singh, before the Judicial Committee illustrates the difference.' In Nachikalai v. Aiyakannu, AIR 1928 Mad 283, a Division Bench of the Madras High Court observed that the basis of the Bombay decision in Bai Kanku's case, AIR 1919 Bom 146. was not clear. Even if it be held that the law has been correctly laid down by the Bombay court we think that it is clearly distinguishable as pointed out above. The next case relied upon by the learned counsel for the appellant is Kaliammal v. Sundarammal, AIR 1949 Madras 84. The basis of this decision seems to be that the trial of the earlier suit had not been fair and honest on the facts of that case. If this decision is, however, relied upon for the proposition that a decree obtained in the previous suit in which a female heir had made an admission would in no case bind the subsequent reversioners we have no hesitation in dissenting from such a wide proposition
The decision really in point is AIR 1918 PC 87. In a previous litigation the widow had admitted that she had validly adopted a son under the authority given to her by her husband. She then filed a suit against the adopted son challenging the adoption. The two courts in India had held that her suit was barred by estoppel as she could not challenge the adoption which she had herself previously admitted. The question was whether the decree in that suit would be binding on the reversioners. Lord Sumner, delivering the judgment of the Board, observed as follows:
'It has been urged by the learned counsel for the appellants here that Rani Dharam Kunwar cannot be regarded as having represented the estate in her suit against Balwant Singh, as by her acts she was personally estopped from denying that she had validly adopted him to Raja Raghubir Singh. In the absence of all authority, their Lordships cannot decide that, a Hindu lady, otherwise qualified to represent an estate in litigations ceases to be so qualified merely owing to personal disability or disadvantage as a litigant, although the merits are tried and the trial is fair and honest.' It is impossible for us to hold that every act or omission of a female heir which is the basis of the previous decree must necessarily be something personal to her and that such a decree would not bind the reversioners. Take the case of adverse possession. If a female heir totally neglects the property which has vested in her and allows a stranger to acquire title to it by adverse possession and subsequently falls in a suit filed by her against the stranger can it be said that a decree passed in such a suit would not hind the reversioners limply because the negligence or omission of the female heir to look after the property was something personal to her? the law on this subject is well settled. It is stated in Mullas Hindu Law: 'A person who has been in adverse possession for twelve years or upwards of property inherited by a widow from her husband by any act or omission on her part is not entitled on that ground to hold it adversely as against the next reversioner on the widow's death. The next reversioner is entitled to recover possession of the property, if it is immovable, within twelve years from the date of the widow's death under Article 141 of Schedule I of the Indian Limitation Act, 1908, and if it is movable, within six years from that date under Article 120 of that Act .. .. But where a decree founded upon adverse possession has been obtained against the widow in her lifetime the next reversioner is barred and he does not get the benefit of Article 141 of the Limitation Act.'
4. In our view the decree of the court below is perfectly correct and it must be upheld. Learned counsel for the appellant, in the alternative, contended that this court in the appeal arising out of suit No. 348 of 1918 had held that the plaintiffs had an equity of redemption. In this suit out of which the present appeal has arisen, however, the appellant did not seek the relief of redemption. Whether he can do so in future or not is a question upon which we are not called upon to express any opinion.
5. We find no merit in this appeal andit is dismissed with costs. As the appellantfiled this appeal as a pauper let a copy of thisdecree be forwarded to the Collector for therealisation of the court fee payable on thememorandum of appeal.