1. This is an appeal by the defendant. A short pedigree may be given at once:
RAM SUDH MAN TIWARI = Mt. Jaicha Tiwarin |Mt. Hansrani (daughter)|--------------------------| |Ram Nain alias Ram Lagan MisirBhagelu Misir |--------------------------| |Bhagauti alias Ramji Misir Bagesari Misir (Plaintiff 1) (Plff. 2).
2. It appears that Ram Sudh Man Tiwari was possessed of some zamindari property. He died and after his death his widow Mt. Jaicha Tiwarin came into possession of the said property. After the death of the latter Mt. Hansrani, the daughter, came into possession of the property. She along with Ram Nain on 10th June 1892 sold the property to Kashi Sahu, who is the predecessor of the present defendants. It is not quite clear whether Mt. Hansrani figured as the guardian of Ram Lagan in the sale deed or whether Ram Nain figured as the guardian of Ram Lagan. The lower appellate Court says that the sale deed was executed by Ram Nain for self and as guardian of Ram Lagan. Be that as it may, the sale deed was on behalf of Mt. Hansrani, Ram Nain and Ram Lagan, the last one being a minor. It is unfortunate that neither the sale deed nor a copy of the sale deed is on the record of the present case. Some time in 1900 Ram Lagan brought suit No. 128 of 1900 in the Court of the Subordinate Judge of Gorakhpur on the allegation that Mt. Hansrani was a woman of weak intellect and Ram Nain had just attained majority at the time of the execution of the sale deed of 1892 and the sale was without any lawful necessity. He, therefore, prayed that it may be declared and established by the Court that the sale deed was null and void and ineffectual after the death of Mt. Hansrani, and that if any portion of the sale consideration be found to be lawful, proper orders may be issued accordingly. The learned Subordinate Judge who tried the suit of 1900 was of the opinion that there was legal 1 necessity for Rs. 1,125 and there was no legal necessity for Rs. 726. The decree that was passed in the case was in the I following terms:
It is ordered and decreed that the suit be 1 decreed thus out of the sale consideration 1 Rs. 726 is illegal and so far as this amount relates to the sale deed it is not binding on the plaintiff after the death of his mother.
3. The exact meaning of this decree has been the subject of great controversy in the Courts below and before me. The present plaintiffs are the sons of Ram Lagan Misir and they brought the pre- sent suit for possession of the property covered by the sale deed of 1892 on the basis of the decree in suit No. 128 of 1900 , and their contention was that they were not liable to pay anything to the defendant inasmuch as more than Rs. 1,125 1 (the sum adjudged to be for legal necessity in the former suit) had been realised by the defendants because the defendants I had been in possession of the property for a considerable number of years, and in the alternative the plaintiffs expressed I willingness to pay such sum as was considered proper by the Court. Their case was that a declaratory decree was obtained by Ram Lagan and that Mt. Hansrani having died on the 14th November 1919 the plaintiffs were entitled to obtain. possession of the property covered by the sale deed by reason of the declaratory decree obtained by their father. Ram Lagan died on 16th June 1924 and Ram Nain died on 3rd January 1926, and the plaintiffs alleged that both the brothers. Ram Nain and Ram Lagan used to live jointly with the plaintiffs and the plaintiffs were the only heirs and survivors of the family.
4. The defence was that the decree in suit No. 128 of 1900 did not give any right to the plaintiffs to sue, that the property which Ram Lagan and Ram Nain got from their maternal grand-father could not be considered to be ancestral property, that each of the two brothers had a separate right and share in the property sold and that as Ram Nain was one of the executants of the sale deed plaintiffs could in no event get back the share of Ram Nain. They also alleged that the defendants were bona fide purchasers and) in possession of the property sold on payment of a reasonable consideration and the plaintiffs' suit was barred by Section 41, T.P. Act. They alleged that Ram Nain had executed a separate registered agreement to the effect that in case Ram Lagan, the father of the plaintiffs, raised any objection to the said sale deed, he, Ram Nain, would be personally liable for the entire loss of the vendee. Learned Counsel for the defendant has not been able to point to any registered agreement by Ram Nain. In the result they prayed for the dismissal of the suit in its entirety. As stated before, a great deal of controversy has centred round the question as to what was the exact scope of the decree passed in the former suit. While it is contended by Harbans Sahai on behalf of the defendant-appellant that all that was declared in the former suit was that Rs. 726 out of the sale consideration was not for legal necessity, it is argued by Mr. Shiva Prasad Sinha on behalf of the plaintiffs-respondents that the plaintiffs' suit for a declaration that the sale deed executed by Mt. Hansrani should be declared to be null and void and ineffectual after the death of Mt. Hansrani was decreed, and the proper interpretation to be put upon the decree is that it was decided by the Court in the former suit that the sale deed by Mt. Hansrani 'would be ineffectual after the death of Mt. Hansrani in favour of the reversioner who might be alive then, provided a sum of Rs. 1,125 was paid by him. I am inclined to agree with the submission of the respondents and with the view taken by the Court below. Ram Lagan's suit was decreed in 1900. He prayed that the sale deed of 1892 be declared null and void if any amount of the sale consideration be found to be lawful, proper orders may be issued. The suit for a declaration was decreed and it was held that Rs. 1,125 was a lawful consideration. The import of the decree therefore was that when the reversion opened the reversioner would be entitled to obtain possession of the property on payment of Rs. 1,125.
5. The next question that was argued before me was that Ram Lagan did not during his lifetime bring any suit for possession and he died in 1924. Before possession could be obtained by any reversioner, it was necessary that the sum of Rs. 1,125 should be paid and unless and until that sum was paid a suit for possession was untenable. It is said that Ram Nain and Ram Lagan would 'succeed to the property of their maternal grandfather as members of a united family under the ordinary law of inheritance. namely jointly with right of survivorship' as was held by their Lordships of the Privy Council in Venkayyamma Garu v. Venkataramanayyamma Bahadur Garu (1902) 25 Mad 678, and if Ram Nain brought the present suit he would be met with the plea of estoppel inasmuch as he had joined in the sale-deed; of 1892. His suit would be liable to be dismissed on the principle laid down by this Court in Mahadeo Prasad Singh v. Mata Prasad 1922 44 All 41 and the case in Paten Singh v. Rukmini Rawanji Maharaj 1923 45 All 339, and if the plaintiffs of the present suit claim as heirs of Ram Nain they would also be met with the plea of estoppel. On behalf of the plaintiffs it is however said that this was not the case set forth by the defendants in. the written statement and all that they alleged was that Ram Nain's half share could not be obtained by the plaintiffs, and the plea was not formulated before the Courts below in the way in which it is being formulated for the first time in this Court. In view of the fact that the defendants emphasised the disability under which Ram Nain laboured and the fact that they prayed for the dismissal of the entire suit, I am prepared to allow the plea to be taken before me in its present form, more particularly when the plea contains a pure question of law not dependent on the decision of any question of fact.
6. The position taken by the defendant appellant is that although the grandsons inherit jointly the property of their grandfather with right of survivorship, a son in a joint Hindu family does not acquire by birth an interest jointly with his father in property which the latter inherits from his maternal grandfather: see the case in Jamna Prasad v. Ram Pratap (1907) 29 All 667 and Bishwanath Prasad Sahu v. Ganjadhar Prasad 1917 3 PLJ 168 and therefore after the death of Ram Lagan in 1924 Ram Nain became the sole owner of the property left by his maternal grandfather Ram Sudh Man Tiwari, and after Ram Nain's death the plaintiffs could claim the property only as heirs of Ram Nain, and as Ram Nain is estopped his successors are also estopped: see Mahadeo Prasad Singh v. Mata Prasad 1922 44 All 44. It is however contended on behalf of the plaintiffs respondents that Ram Lagan and Ram Nain were members of a joint Hindu family, and this property which they gob from their maternal grandfather became an accretion to their ancestral property, that is to say, the property which they inherited from their father and paternal grandfather, and, as such, the sons also got an interest in the property, and reliance is placed on the case of Man Singh v. Maharani Nawlakhbati 1923 2 Pat 607. Several questions arose for determination in that case and Das, J., in the course of an elaborate judgment referred to the Privy Council decision to which reference has been made by me and observed as follows:
Now admittedly Niladri and Appa Rao did not have a common interest and a common possession in the property of their maternal grandfather during his lifetime. But they were undoubtedly members of a united family and there was coparcenership between them, and, I would add, their issue, qua the property which was admittedly their ancestral property. In my opinion the Judicial Committee acted upon the view that the property inherited by Niladri and Appa Rao formed an accretion to their family property, for on no other hypothesis is it possible to explain that decision consistently with the admitted principles of the Mitakshara.
7. I am not quite in agreement with the view expressed by the learned Judge, and this view undoubtedly is to a certain extent in conflict with the decision in Bishwanath Prasad Sahu v. Ganjadhar Prasad 1917 3 PLJ 168 of the Patna High Court and Jamna Prasad v. Ram Pratap (1907) 29 All 667 of our own Court. At the same time it is possible for two brothers, who inherit property from their maternal grandfather, to blend it with the property which they inherit from their own father and from their own paternal grandfather and thus make the property inherited from their maternal grandfather a portion of joint family property, and in that event the sons would have an interest by birth in the property which their father inherited from their own maternal grandfather. The case was not approached in the Courts below from that point of view, but it is not necessary to obtain any finding on this point because there never arose an occasion when Ram Nain and Ram Lagan could blend the property inherited from their maternal grandfather with their property inherited from their father and paternal grandfather. The property in question passed out when it was in the hands of their mother. The result therefore, according to the view which I take of the case, is that the plaintiffs as the heirs of Ram Nain (and this is the only capacity which they possess) cannot question the sale-deed of 1892 and their suit is liable to be dismissed.
8. Certain other points were raised by learned Counsel for the appellant and it is necessary to notice them in order to make my judgment complete. It was argued that the plaintiffs' suit is barred by Section 43, T.P. Act, and reliance is placed on the case in Shyam Narain Misir v. Mangal Prasad Misir 1935 4 AWR 1121. First of all Section 43, T.P. Act, was never pleaded by the defendant in the written statement, and moreover the case is clearly distinguishable. As stated before, the sale-deed is not on the record, and it cannot be said with certainty as to what representations were made when the property was sold to the predecessor of the defendant, but one may safely assume that as Mt. Hansrani was an executant of the sale-deed in her own right the parties knew perfectly well that the immediate title in the property rested with Mt. Hansrani, and there was no erroneous representation on the part of Ram Nain that he was the owner of the property. The vendee knew perfectly well the state of affairs and there was no inducement, and as held by the lower appellate Court,
in the absence of the sale-deed itself and evidence on the appellants' side proving that Ram Nain induced the vendee to believe him (Ram Nain) as an owner of the property and that the vendee had no knowledge himself on the point.
9. Section 43, T.P. Act, can have no application A plea of limitation was also advanced on behalf of the appellant, but I have not been able to appreciate the same. The plaintiffs' suit having been brought within 12 years of the death of Mt. Hansrani is clearly within time. In view of what I have said above, it is clear that the plaintiffs are entitled to no relief. I therefore allow this appeal, set aside the decrees of the Courts below and dismiss the plaintiffs' suit with costs in all Courts. Leave to file an appeal by way of Letters Patent is allowed.