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Raghubir Saran and anr. Vs. Ram Saran and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1928All651; 114Ind.Cas.33
AppellantRaghubir Saran and anr.
RespondentRam Saran and anr.
Excerpt:
.....never been the other way, as may very well be illustrated by the following decisions: 26. the learned subordinate judge has failed to notice that the property was purchased by kallu mal in execution of his decree for profits against mt......in her capacity as a female heiress representing the estate and that the claim and object of mt. dhapo's suit was to recover the property and therefore to preserve the reversion. as to the mortgages of 1915 and 1916, he held that they were executed with a view to raise funds to meet the expenses of this litigation and they constituted a justifiable necessity under the hindu law. both the parties appear to be dissatisfied with the decree of the learned subordinate judge. the first appeal, no. 378 of 1925 has been filed by the two sons of kallu mal with reference to the 18 bighas odd of property which has been decreed in favour of the plaintiffs. the connected first appeal, no. 390 of 1925, has been filed by the plaintiffs against the dismissal of their suit as regards the one-third.....
Judgment:

Sen, J.

1. This and the connected appeal arise out of the same suit instituted by the daughters' sons of one Pat Ram, who died about the year 1894. At the time of his death, he appears to have been in fairly affluent circumstances and the property he left is the one, which is the subject-matter of the present litigation. His family, on the date of his demise, consisted of a widow Mt. Dareo Kuar and three daughters, Mt. Mathuri, Mt. Mahru and Mt. Dhapo. Pat Ram's widow, Mt. Dareo, remained in possession of his property for a number of years and at the time of her death, she did not leave any liabilities behind in the shape of debts or charges upon the property. The exact date of the death of Mt. Dareo is not known, but it is an admitted fact and there is no contest that upon her death, the three daughters got possession of the property under the ordinary Hindu law of succession. Mt. Mathuri died in 1907 and the estate came into the possession of Mt. Mahru and Mt. Dhapo as joint tenants. Mt. Mahru died in 1908. leaving three sons, Ram Saran and Hoshiara, who are the plaintiffs in the present action, and Khazana who died before the institution of the present suit. These took possession of the property which stood in the name of their mother in the village administration papers. This provoked a suit by Mt. Dhapo about the year 1910 for the removal of their names from the revenue papers and for recovery of possession of the property as also mesne profits. The claim was decreed and from the year 1910 onwards, Mt. Dhapo was the only person who under the Hindu law could claim a title to the property as a limited owner.

2. Musammat Dhapo executed a simple mortgage in favour of Khushi Ram and others on or about 9th December 1907. On 15th May 1909 she executed a simple mortgage in favour of Kanhaiya Lal, defendant 1, for a sum of Rs. 1,100, the object of the loan being the institution of a suit against the present plaintiffs and against one Tej Ram. The property hypothecated under this document was a half share in the khewat No. 2/1 comprising 3 biswas 6 biswansis 13 khachwansis measuring 111 bighas and 7 biswas pukhta of land in mauza Sahababad.

3. It appears that Mt. Dhapo did not pay her quota of Government revenue with reference to this property for the kharif of 1319F and for the whole of 1920F to the lambardar Bhure Singh. Although there was no pressure upon the estate by any processes sought to be enforced by the Government against Bhure Singh and his cosharers for recovery of the amount of arrears of Government revenue, Bhure Singh paid Rs. 84-3-0 being the share of Mt. Dhapo for the kharif of 1319F and Rs. 189-10-0 being her share for the entire year 1320F. Bhure Singh was entitled to recover this amount from. Mt. Dhapo under Section 159, Tenancy Act (Act 2, 1901). We next find Bhure Singh assigning his right to recover this amount from Mt. Dhapo to Lala Kallu Mal who was defendant 4 in the suit. The deed of assignment is not before the Court but it was executed some time about 7th July 1913. Kallu Mal instituted a suit against Mt. Dhapo for the recovery of Rs 284-4-0, and tacked on to the claim certain items due on account of village expenses and haq-i-lambardari. The allegations on which the suit was launched cannot be ascertained. We do not know the exact frame of the suit and the exact relief prayed for by the plaintiffs. We do not know whether the amount was claimed from Mt. Dhapo in her personal or in her representative capacity. The copy of the decree, however, shows that the suit was directed not only against the defaulter Mt. Dhapo but against her sister's sons and also against Bhure Singh lambardar. On 5th November 1913 an ex-parte decree was passed against 'the defendant' for Rs. 305-6-9.

4. On its face value the decree does not purport to have been passed against Mt. Dhapo in her representative capacity for a debt which was chargeable upon or enforceable against the estate of Pat Ram. What was sued for and obtained was no more than a personal decree for money, executable against Mt. Dhapo in her personal capacity. We have not before us the application for execution made by Kallu Mal, the assignee decree-holder, to show what was the exact relief claimed by him with reference to the property, which was sought to be attached and sold by him in execution of his decree. Nor have we the order of attachment passed by the Court at his instance. The proclamation of sale, notifying the exact nature and extent of the property sought to be proceeded against in execution, is also not before the Court, We find, however, that a two-thirds share out of the whole of 111 bighas and 7 biswas pukhta of the khewat No. 2 was sold some time about 27th May 1914 for a sum of Rs. 375-14-0 and purchased by Kallu Mal himself. It was notified at the time of the auction-sale that the property in question was subject to a mortgage in favour of Kanhaiya Lal, the amount of which came to about Rs. 2,000.

5. Two further mortgages appear to have been made by Mt. Dhapo. On 17th December 1915 she executed a usufructuary mortgage in favour of Bharat Singh, defendant 2, under which she put the mortgagee into possession of a one-fourth part of the entire holding. This was a mortgage to secure a loan of Rs. 500 and the reason for the loan as recited in the mortgage-bond was for defraying the expenses of a suit instituted by her and then pending in the civil Court against Kallu Mal to have the auction sale of May 1914 set aside and for meeting her private expenses and the expenses of cultivation. The other mortgage was for Rs. 200 in favour of Sher Singh, defendant 3, and the object of the loan, as stated in this document, is to defray the expenses of the suit against Kallu Mal both on the original side and in the Court of appeal.

6. There can be no question that Mt. Dhapo had launched a suit against Kallu Mal and a number of other persons including the present plaintiffs in the Court of the Subordinate Judge of Meerut. The direct object of the suit was the annulment of the auction-sale in favour of Kallu Mal in pursuance of his decree for recovery of arrears of revenue, etc., She complained that the decree in the suit which was passed against her at the instance of Kallu Mal was obtained behind her back and was open to impeachment on several grounds and was from start to finish vitiated by fraud. She boldly complained that, as a matter of fact, no revenue was due from her. She averred that no summons had ever been served upon her either of the institution of the suit or in the course of the execution proceedings. She further stated that the execution proceedings were instituted and followed up to the finish with indecent haste and that defendants 3 to 6 in that suit had colluded with Kallu Mal, and Bhure Singh was at the bottom of the conspiracy.

7. These charges were considered by the Subordinate Judge in seriatim and were rejected in their entirety. The result was that her claim was dismissed on 18th February 1916 with costs. She preferred an appeal to the learned District Judge of Meerut but the ground of appeal was engrossed upon an insufficiently stamped paper and Mt. Dhapo not having made good the deficiency within the time allowed by the Court, her appeal was dismissed on 27th May 1916 with costs. She was thus saddled with the costs of Kallu Mal which amounted to Rs. 113-8-0 for the two Courts.

8. Kallu Mal obtained a decree for profits against Mt. Dhapo from the revenue Court for Rs. 168 2-9 on 29th March 1916. In execution of this decree, the remaining one-third share in khewat No. 2 of Sahababad measuring 37 bighas odd was sold and purchased by Kallu Mal himself for Rs. 450 on 9th January 1917. What steps Kallu Mal took to enforce his decree for costs cannot be exactly ascertained from the printed record, but it is alleged that the proceeds of the decree for profits were utilized by way of rateable contribution towards the discharge of the decree for costs. Kallu Mal appears to have redeemed the mortgages dated 17th December 1915 and 13th March 1916 affecting this portion of the property.

9. We have already taken note of the fact that one of the earliest mortgages made by Mt. Dhapo was in favour of Kanhaiya Lal, dated 15th May 1909. The mortgagee put his mortgage into suit, obtained a decree and in execution thereof, he purchased about 55 bighas odd out of the two-thirds of 111 bighas odd of the entire holding in khewat No. 2 of the village of Sahababad.

10. The present suit was commenced on 31st July 1921 on the allegation that the plaintiffs, as the daughters' sons of Pat Ram, were entitled to recover possession of the entire property which had passed into the possession of Kanhaiya Lal and Kallu Mal by reason of the auction purchase in enforcement of the respective decrees. The plaintiffs alleged that the said decrees were not binding upon them, that the mortgages in favour of Kanhaiya Lal and those in favour of Bharat Singh and Sher Singh, defendants 2 and 3, were without legal necessity, that the sales made in execution of the decree for revenue by Kallu Mal or in execution of the decree for costs by Kallu Mal in the suit of Mt. Dhapo against him could not affect the reversionary rights of the plaintiffs

11. Kallu Mal died during the pendency of this suit and was succeeded by his sons, defendants 4 to 7, only two of whom, namely, defendants 4 and 5, are the appellants before this Court.

12. The suit was contested by Kanhaiya Lal, defendant 1, and by the present appellants Raghubir Saran and Chandu Lal separately. They claimed that the transfers and auction sales challenged by the plaintiffs were made for legal necessity and were binding upon the estate of Pat Ram, that the decree for arrears of revenue and the decree for costs passed against Mt. Dhapo were in her capacity as a female heiress representing the estate and were consequently binding upon the reversioners.

13. The Court of first instance held that the mortgage in favour of Kanhaiya Lal was not for legal necessity and no right to the detriment or prejudice of the reversioners could accrue as a consequence of the execution of the said decree. It held, therefore, that the auction-purchase by Kanhaiya Lal to the extent of 55 bighas and odd was inoperative against the plaintiffs. Kanhaiya Lal has submitted to the decree of the Court below and this portion of the property is no longer in controversy in the present appeal. As to the 18 bighas 11 biswas and two biswansis which remained with Kallu Mal out of the 74 bighas 4 biswas and. 13 biswansis purchased by him in execution of the decree for recovery of revenue, the Court held that this decree was passed against Mt. Dhapo not in her representative capacity and consequently it could not bind the reversioners. It further found that the usufruct of the property was quite sufficient to enable Mt. Dhapo to pay her quota of the Government revenue. If she had allowed the Government revenue to fall into arrears, she was liable to Bhure Singh, the lambardar, and his assignees but the liability could extend only to her life interest in the property and could not enure beyond the term of her natural life. This was in effect the basis of the judgment of the learned Subordinate Judge. He found that the income from the property was sufficiently large to enable Mt. Dhapo to meet her liabilities in respect of the Government revenue. He further found that the property actually purchased by Kallu Mal in satisfaction of a decree for Rs. 328 was of the value of nearly Rs. 4,000. Taking all these facts into consideration, he gave the plaintiffs a decree for 18-bighas 11 biswas and 3 biswansis out of this portion of the property with the direction that the auction-sale in favour of Kallu Mal was to be set aside upon the plaintiffs paying Rs. 328 to Kallu Mal.

14. As to the remaining one-third share of the property of the entire khewat No. 2, he dismissed the plaintiffs' suit upon the ground that the decree in execution of which the property was sold and purchased by Kallu Mal was passed against Mt. Dhapo in her capacity as a female heiress representing the estate and that the claim and object of Mt. Dhapo's suit was to recover the property and therefore to preserve the reversion. As to the mortgages of 1915 and 1916, he held that they were executed with a view to raise funds to meet the expenses of this litigation and they constituted a justifiable necessity under the Hindu law. Both the parties appear to be dissatisfied with the decree of the learned Subordinate Judge. The first appeal, No. 378 of 1925 has been filed by the two sons of Kallu Mal with reference to the 18 bighas odd of property which has been decreed in favour of the plaintiffs. The connected first appeal, No. 390 of 1925, has been filed by the plaintiffs against the dismissal of their suit as regards the one-third share out of the khata khewat No. 2.

15. We shall now proceed to deal with these two appeals separately. In First Appeal No. 378 of 1925 it has been argued that Mt. Dhapo did not wilfully allow the Government revenue for 1319F and 1320F to fall into arrears and that nonpayment was attributable to insufficiency of income from the property. This contention is sought to be supported by the statement of one Het Ram Patwari and by a judgment dated 11th April 1911. It may be remarked at once that this evidence is too thin and scanty and is absolutely unconvincing. The Patwari states that an annual rental of this land during the regime of Mt. Dhapo was Rs. 388 and no more. He produces no papers in corroboration of this statement. He says, however, that he has given the rental from memory and that he has given it from guess, that he did not consult any paper for it and that he cannot give the rents of the khatas separately and does not remember the rental of any other zamindar. It is to be borne in mind that no difficulty had arisen in the past about the payment of revenue in the time of Pat Ram or of his widow or while Mt. Mathuri and Mt. Mahru were alive. In 1912 and 1913 we are not faced with an abnormal conditions affecting the solvency of the tenants or with any special demands upon the resources of Mt. Dhapo. The plaintiffs valued the property in suit at Rs. 6,000. The value of the two-thirds share purchased in execution of Kallu Mal's decree was therefore about Rs. 4,000. We do not lose sight of the mortgage of Kanhaiya Lal, which was notified at the time of the auction-sale; but we cannot persuade ourselves to believe that the sale of two-thirds of the property of this value was justified to satisfy a decree for Rs. 328. Either the transaction was unfair to the knowledge of Kallu Mal, or he intended at the time to purchase no more than the right, title and interest of the judgment-debtor which could not and did not enure beyond her lifetime.

16. It is next argued that the corpus may be validly alienated to discharge the decree for arrears of revenue passed against a female heiress and the case of Ganesh Lal Pandit v. Khetramohan Mahapatra A.I.R. 1926 P.C. 56 has been strongly relied on. In that case the estate, which descended to the female heiress, was honeycombed with debts and the financial stringency was too acute. The arrears of revenue for which the decree had been obtained by the co-sharers could well, under the circumstances, be regarded as a 'compelling necessity' to justify the alienation. In the case of alienation by a limited owner, it is settled law that the onus of proof lies upon the alienee to prove the necessity. An outstanding decree for arrears of revenue against the limited owner may be treated as a prima facie evidence of the existence of necessity. The existence of the decree cannot be treated as conclusive evidence of the alleged necessity; although in ordinary circumstances, where there is nothing to rouse his suspicion, the alienee may well be justified in accepting the representation of the alienor, backed and supported as it is by the decree for arrears of revenue.

17. In the case of an involuntary sale, the element of representation is wanting. Whether or not the decree-holder could have the corpus, as distinguishable from the life-interest, attached and sold would depend upon the circumstances under which the revenue fell into arrears and upon the nature and character of the suit in which the execution issued. It is not open to the life-tenant to imperil the revision by extravagance, imprudence and wanton neglect to pay the Government revenue, where funds were available to her and where there was no pressure upon the estate. Given certain conditions, the arrears of revenue may constitute legal necessity; but it would be a most dangerous proposition to lay down that arrears of revenue must necessarily be held to be so, without any pressure upon the estate and in utter disregard of the surrounding circumstances.

18. It cannot be controverted that a decree fairly obtained against a limited owner, representing the estate, is binding upon the reversioner. It is equally clear that a decree passed against her in her personal capacity is not enforceable against the estate and does not affect the reversion. The female heir in enjoyment of the estate is under the obvious liability to pay her share of the Government revenue. In the absence of evidence to prove that the usufruct of the property was not sufficient to enable her to answer her needs and to meat the Government revenue, the mere fact of allowing the revenue to fall into arrears will not put upon her self-created liability the impress of necessity as would legalize the conveyance of an absolute title to the property in execution of the decree against her.

19. There can be no analogy between the power of the Crown to sell the property of the defaulting cosharer free from incumbrance and the right of the lambardar to enforce his decree by attachment and sale of the defendant's property. The difference between the two is one of substance and is founded upon principles of public expediency.

20. A cosharar or a lambardar, paying the arrears of revenue for a defaulting co-sharer, who has a limited interest in the property, cannot in enforcement of his decree proceed against his rights and interest in the property except by a properly framed suit, which is not confined to a personal remedy. The extent of the property sold in execution would depend upon the nature of the suit in which the execution issues.

21. The matter is not res integra and the principle has been enunciated, adopted and applied in a succession of cases. In Nugender Chander Ghose v. Kamini Dassee [1186] 11 M.I.A. 241 the Judicial Committee of the Privy Council observe as follows:

They repeat that it is not, in their opinion, the question whether the person who pays the arrear of revenue does not acquire thereby a charge on the taluq which he saves from sale, but whether, if he seek to enforce that right, he must not do so in a suit properly framed for that purpose, and not merely in a suit which is confined to a personal remedy against the person in possession of the taluq. If the person who so pays the arrears of revenue seek repayment only under Section 9, Act 1, 1845, as against the person in possession of the taluq who has but the limited interest therein and confines his suit to that object, their Lordships concur with the opinion of the High Court that the decree so obtained against the person in possession can only be made effectual against the property of that person, including such interest as she had in the taluq.

22. To our knowledge, the swing of the pendulum has never been the other way, as may very well be illustrated by the following decisions: Baijun Doobey v. Brij Bhookan Lall Asusti [1875] 1 Cal. 133, Jugul Kishore v. Jotindro Mohan Tagore [1884] 10 Cal. 985, Jiban Krishna Roy v. Brojo Lal Sen [1903] 30 Cal. 550, Mohammad Sadat Ali v. Hara Sundari Debya [1912] 16 C.W.N. 1070, Bireshur Das v. Kamal Kumar Dutt [1913] 17 C.W.N. 337, Rameshwar Mandal v. Provabati Debi [1915] 19 C.W.N. 313 and Narana Maiya v. Vasteua Karanta [1894] 17 Mad. 208.

21. Not to pursue the matter any further it has not been established in this case that the revenue fell into arrears by reason of insufficiency of the income of the property. The decree for arrears of revenue was a personal decree against Mt. Dhapo in execution of which the absolute interest in the property could not be conveyed to the auction-purchaser to the detriment of the reversioner.

22. Under the circumstances, the plaintiffs were entitled to succeed and the learned Judge was not justified in imposing any terms upon the plaintiffs. No objection, however, having been taken to the decree passed by the trial Court, we cannot delete the condition from the decree. We would dismiss this appeal.

23. First Appeal No. 390 of 1925 is confined to the plaintiffs' claim to recover 37 bighas, 2 biswas and 6 biswansis which was purchased by Kallu Mal at a Court sale on 24th November 1916, for Rs. 450. The plaintiffs impugn the mortgages dated 17th December 1915 and 13th March 1916 in favour of Bharat Singh and Sher Singh, which Kallu Mal subsequently redeemed. This part of the claim was disallowed by the Court below on the following grounds (1) That the object of Mt. Dhapo's suit was to recover the property from Kallu Mal and was, therefore, beneficial to the reversion; (2) that Mt. Dhapo was justified in raising loans under the two mortgages for the expenses of the litigation against Kallu Mal which had already been started and (3) that the bulk of the loan was utilized for defraying the costs of the said litigation.

24. We are of opinion that a female heir is not justified in jeopardizing the reversion by incurring debts for the prosecution of a frivolous litigation affecting the estate and cannot be allowed to saddle the reversion with the risks of a speculative venture. The allegations upon which Mt. Dhapo's suit proceeded are characterized by a reckless disregard for truth. The imputations made against Kallu Mal were false to her knowledge and absolutely baseless.

25. Rupees 700 odd were borrowed under the two mortgages already adverted to, the avowed objects being to meet the expenses of litigation, for her private expenses and for meeting the costs of cultivation. The parties are agreed before us that she never cultivated an inch of land. There is no evidence whatsoever as to what her 'private expenses' were. We are left in dark as to what amounts were actually spent by her towards the prosecution of this suit, which was dismissed by the trial Court and which was not prosecuted in appeal. Her taxed costs in the two Courts amounted to Rs. 113-8-0. The mortgage of 37 bighas odd for Rs. 700 was, therefore, wholly unjustified. The reversioners are not and cannot be bound by the loan incurred by her and the estate is not answerable for the costs decreed against her. The litigation was a mad frolic of Mt. Dhapo and entirely gratuitous. It would be ridiculous to call it a representative suit.

26. The learned Subordinate Judge has failed to notice that the property was purchased by Kallu Mal in execution of his decree for profits against Mt. Dhapo in suit No. 10 of 1916. We do not know the circumstances under which the claim for profits arose, but a decree for profits was essentially a decree for money recoverable from Mt. Dhapo personally and could not be operative against the reversioners. We hold, therefore, that the heirs of Kallu Mal are not entitled under the auction-purchase to retain possession of his property against the plaintiffs-appellants.

27. The result is that we allow First Appeal No. 390 of 1925 with costs and we dismiss First Appeal No. 378 of 1925 with costs.


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