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Hargawan Magan and anr. Vs. Baij Nath Das and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Judge
Reported in4Ind.Cas.144
AppellantHargawan Magan and anr.
RespondentBaij Nath Das and anr.
Excerpt:
limitation act (xv of 1877), schedule ii, article 11 - one year's limitation does not apply to a person who was no party to proceedings in which the order was made--transfer of property act (iv of 1882), section 6(a)--hindu law--transfer of reversionary interest in movable property is invalid. - - this contention is, in our opinion, well-founded. it is clear, therefore, that the clause applies to a transfer of the rights of an expectant heir in movable as well as in immovable property......of the sale of the jewellery and with the money left by gauri shankar he purchased government promissory-notes of the face value of rs. 17,600. upon the death of musammat rambha the promissory-notes passed to musammat parbati, the mother of gauri shankar, as the next heir to his property. on the 1st of august 1904 sheo das executed a document in favour of musammat parbati whereby he purported to convey to her and release in her favour all his interest in the promissory-notes referred to above. musammat parbati is now dead and the only heirs left by her are her two sans baij nath das and sheo das. the appellants hargawan magan and mulchand, the predecessor-in-title of the other appellant held a, decree, dated the 17th november, 1903, against sheo das and in execution of that decree.....
Judgment:

1. The facts of this case are these: One Ghaibi Ram died leaving three sons Baij Nath Das, Sheo Das and Gauri Shankar and a widow Musammat Parbati. After the death of Ghaibi Ram, the three sons separated. Gauri Shankar died leaving some cash and jewellery. His widow Musammat Rambha was at the time a minor. A guardian of the property of the minor was appointed by the Court and he sold the jewellery and with the proceeds of the sale of the jewellery and with the money left by Gauri Shankar he purchased Government promissory-notes of the face value of Rs. 17,600. Upon the death of Musammat Rambha the promissory-notes passed to Musammat Parbati, the mother of Gauri Shankar, as the next heir to his property. On the 1st of August 1904 Sheo Das executed a document in favour of Musammat Parbati whereby he purported to convey to her and release in her favour all his interest in the promissory-notes referred to above. Musammat Parbati is now dead and the only heirs left by her are her two sans Baij Nath Das and Sheo Das. The appellants Hargawan Magan and Mulchand, the predecessor-in-title of the other appellant held a, decree, dated the 17th November, 1903, against Sheo Das and in execution of that decree they caused a-half share of the promissory-notes to be attached as the property of Sheo Das. Thereupon Baij Nath Das preferred a claim alleging that he alone was entitled to the promissory-notes. His objection having been overruled, the suit out of which this appeal has arisen was brought by him for a declaration that the half share of the promissory-notes attached by the decree-holders was not liable to sale in execution of their decree.

2. The Court below has made a decree in favour of Baij Nath Das for one-half of the half share claimed by him. It was of opinion that the document of the 1st of August 1904 was a deed of family settlement and that under it Musammat Parbati acquired an absolute interest in one half of the promissory-notes.

3. From this decree the present appeal has been preferred The first contention on behalf of the appellants is that the claim is barred by limitation inasmuch as the suit was originally brought against Hargawan Magan only and the representative of Mulchand was added after the expiry of one year from the date of the order disallowing the objection preferred by Baij Nath Das. This contention is, in our opinion, untenable inasmuch as we find that the aforesaid order was passed in proceedings to which Mulchand or his legal representative was not a party. The plaintiff, no doubt, was bound to bring his suit within one year from the date of the order to have it set aside as against the persons in whose favour it was made but as Mulchand or his legal representative was not a party to the proceedings in which the order was passed, the provision of the Limitation Act which requires a suit to be brought within one year did not apply as against him. The main contention on behalf of the appellants is that the release dated the 1st of August 1904 was in reality a transfer of reversionary rights and that such a transfer is void having regard to Section 6(a) of the Transfer of Property Act. This contention is, in our opinion, well-founded. By the instrument mentioned above Sheo Das purported to convey to his mother his interests in the Government promissory-notes. Those interests were only those of a reversioner. At the time when the document was executed his mother was in possession and he had a reversionary interest only contingent on his surviving his mother. What he transferred was the chance of an heir-apparent succeeding to property within the meaning of Clause (a) of Section 6 of the Transfer of Property Act, Chapter II of that Act relates to transfers of property by acts of parties and sub-head (A) refers to transfers of property whether movable or immovable. It is clear, therefore, that the clause applies to a transfer of the rights of an expectant heir in movable as well as in immovable property. In Sham Sunder Lal v. Achhan Kunwar 21 A. 71; 25 I.A. 183; 2 C.W.N.729 their Lordships of the Privy Council held that under the Hindu Law a person could not make a disposition of or bind his expectant interest. This case has been followed in subsequent cases both by the Calcutta High Court and by this Court, and it has been held in all those cases that the rights of a reversioner cannot be validly transferred. The transfer, therefore, upon which the plaintiff relies is an invalid transfer and had not the effect of conferring upon Musammat Parbati an absolute interest in any part of the promissory-notes in question. Upon her death the ownership of the promissory-notes passed to Baij Nath Das and Sheo Das in equal shares, and, therefore, the appellants were entitled to attach the half share of Sheo Das in execution of the decree held by them. The suit of Baij Nath Das is consequently untenable and ought to have been dismissed. We allow the appeal set aside the decree of the Court below and dismiss the suit of the plaintiff with costs in both Courts.


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