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Sham Rathi Rai Vs. Musammat Jaichha Kunwar and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in40Ind.Cas.117
AppellantSham Rathi Rai
RespondentMusammat Jaichha Kunwar and anr.
Excerpt:
hindu law - widow--surrender--gift of whole estate to presumptive reversioner, validity of. - .....35 i.a. 1 : 17 m.l.j. 605 : 11 o.c. 78 (p.c.) covered only alienations for consideration with the consent of reversioners, and not cases of gifts or transfers without consideration with such consent. the point which is now before us, that is, the surrender by a hindu widow of the whole of her husband's estate in favour of the presumptive reversioners did not arise for decision in any of the oases to which our attention has been called. on the contrary, there are many cases in which the transfer by a widow of her husband's estate to the next reversioner has been upheld. the case reported as bhupal ram v. lachma kuar 11 a. 253 : a.w.n. (1889) 22 : 6 ind. dec. (n.s.) 589 is a case where a widow transferred the estate to her own daughter who was the next in the line of succession to.....
Judgment:

1. This facts as found by the Court below are as follows:-- That Musammat Jaichha Kunwar is the widow of a separated Hindu; that the second defendant Shivatahal Rai is the nearest reversioner at the present time; and that Musammat Jaichha Kunwar had, on the 14th of April 1914, transferred the whole of her husband's estate to Shivatahal Rai, the next reversioner, without any consideration whatsoever. The plaintiff-appellant, whose suit has been dismissed by both the Counts below, is a more remote reversioner, and his plea before us is that upon the facts found, the Courts below ought to have declared that the deed of gift, dated the 14th of April 1914, is not binding upon him after the death of the widow. We have no hesitation in saying that the suit has been properly dis. missed by the Court below. The rule of law which governs such a case as this is to be found in the judgment of their Lordships of the Privy Council in Bajrangi Singh v. Manokarnika Bakhsh Singh 30 A. 1 : 12 C.W.N. 74 : 9 Bom. L.R. 1348 : 6 C.L.J. 766 : 3 M.L.T. 1 : 5 A.L.J. 1 : 35 I.A. 1 : 17 M.L.J. 605 : 11 O.C. 78 (P.C.). At page 20 of the report their Lordships say as follows: 'The High Court of Allahabad, indeed, does not recognise the validity of surrenders in favour, or alienations with the consent of, presumptive reversioners so as to defeat the title of the actual reversioner at the time of the widow's death. But this restriction is at variance with the principle itself, and is not in accordance with the practice in other parts of India in which the Mitakshara Law prevails. Their. Lordships have not been referred to any cases in the Province of Oudh in which this restriction has been acted upon; and though they would' be unwilling to extend the widow's power of alienation beyond its present limits, they cannot adopt the further limitation which the Allahabad High Court has sought to establish. They agree with the High Court of Calcutta, that ordinarily the consent of the whole body of persons constituting the next reversion should be obtained, though there may be cases, in which special circumstances may render the strict enforcement of this rule impossible.'

2. The present is not a case of an alienation with the consent of presumptive reversioners. Our attention has been called to a decision of this Court reported as Bakhtawar v. Bhagwana 5 Ind. Cas. 270 : 32 A. 176 : 7 A.L.J. 121 in which the decision of their Lordships of the Privy Council has been considered. That was a case of gift by a widow to a third person with the consent of the next reversioner, and this Court held that the decision in Bajrangi Singh's case 30 A. 1 : 12 C.W.N. 74 : 9 Bom. L.R. 1348 : 6 C.L.J. 766 : 3 M.L.T. 1 : 5 A.L.J. 1 : 35 I.A. 1 : 17 M.L.J. 605 : 11 O.C. 78 (P.C.) covered only alienations for consideration with the consent of reversioners, and not cases of gifts or transfers without consideration with such consent. The point which is now before us, that is, the surrender by a Hindu widow of the whole of her husband's estate in favour of the presumptive reversioners did not arise for decision in any of the oases to which our attention has been called. On the contrary, there are many cases in which the transfer by a widow of her husband's estate to the next reversioner has been upheld. The case reported as Bhupal Ram v. Lachma Kuar 11 A. 253 : A.W.N. (1889) 22 : 6 Ind. Dec. (N.S.) 589 is a case where a widow transferred the estate to her own daughter who was the next in the line of succession to herself. There have been several other cases in which the principle has been adopted without any hesitation whatsoever. In the present case it is moreover the whole estate which has been surrendered and not a portion of the estate. In our opinion the law on the question has been finally settled and requires no further discussion. The decision of the Court below is correct and the appeal, therefore, fails and is dismissed with costs, including fees on the higher scale. We allow no costs for the objection.


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