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M. Kishan Lal Vs. Mohammad Ishaq and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1936All594
AppellantM. Kishan Lal
RespondentMohammad Ishaq and ors.
Excerpt:
- - the attempt of the plaintiff was unsuccessful and his objections were dismissed. her claim would be defeated on the ground that she is not a co-sharer in the village and is therefore, incompetent to sue for profits......the facts which have given rise to this appeal can briefly be stated as follows:one mt. ganga devi was in possession of a certain share as a hindu female to which she succeeded as such on the death of her mother. she obtained a decree on account of profits against mohammad ishaq, another co-sharer, for a sum of rs. 101-11-4 from the court of an assistant collector. there was an appeal against that decision with the result that mt. ganga devi succeeded in obtaining a decree for rs. 402-14-9. mohammad ishaq preferred a second appeal to this court with the result that the decree passed by the district judge was set aside and that of the first court restored. before the decision in the second appeal preferred by mohammad ishaq was given, mt. ganga devi had applied for execution.....
Judgment:

Rachhpal Singh, J.

1. This is a plaintiff's second appeal arising out of a suit for declaration. The facts which have given rise to this appeal can briefly be stated as follows:

One Mt. Ganga Devi was in possession of a certain share as a Hindu female to which she succeeded as such on the death of her mother. She obtained a decree on account of profits against Mohammad Ishaq, another co-sharer, for a sum of Rs. 101-11-4 from the Court of an Assistant Collector. There was an appeal against that decision with the result that Mt. Ganga Devi succeeded in obtaining a decree for Rs. 402-14-9. Mohammad Ishaq preferred a second appeal to this Court with the result that the decree passed by the District Judge was set aside and that of the first Court restored. Before the decision in the second appeal preferred by Mohammad Ishaq was given, Mt. Ganga Devi had applied for execution and had actually realized from Mohammad a sum of Rs. 402-14-9, in accordance with the decree passed by the District Judge and which was under appeal. After Mohammad Ishaq had succeeded in second appeal before this Court, he made an application under Section 144, Civil P.C., for refund of the excess amount which has been realized by Mt. Ganga Devi. Mt. Ganga Devi died and so Mohammad Ishaq sought to execute his decree against the estate treating it as assets of Ganga Devi. It appears that on the death of Ganga Devi, three persons, Nathu Ram, Kewal Ram and Misri Lal, became entitled to the estate of Ganga Devi's father after her death. These three persons transferred their rights to the plaintiff.

2. The plaintiff made an application to the Court in which Mohammad Ishaq's petition under Section 144, Civil P.C., was pending, objecting to the prayer of Mohammad Ishaq, on the ground that the property in suit was not the property of Mt. Ganga Devi; but that his predecessors had gob possession over it as reversioners of Sarwan Lal and so the property was not liable for any claim which Mohammad Ishaq might have had against Mt. Ganga Devi or her heirs. The attempt of the plaintiff was unsuccessful and his objections were dismissed. Thereupon the plaintiff filed a regular suit for a declaration which has beer dismissed by the lower appellate Court, and he has come up to this Court in. second appeal. As regards the facts of the case there is no dispute between the parties. The only question which has-been agitated before me in this appeal is as to whether or no Mohammad Ishaq is entitled to realize the extra amount which Mt. Ganga Devi got from him by proceeding against the estate which went to the reversioners of Sarwan Lal on the death of Mt. Ganga Devi. Learned Counsel-appearing on behalf of the plaintiff appellant has contended before me that the predecessors of the plaintiff succeeded to the estate of Sarwan Lal, as his nearest male reversioners on the death of Mt. Ganga Devi, and not as heirs of Mt. Ganga Devi and therefore they are not liable for re-payment of any money which Mt. Ganga Devi might have realised in excess of what was due to her. He further contended that the estate, to which the reversioners succeeded in their reversionary right is also not liable for any such claim. I proceed to consider this question.

3. It was argued before me by learned Counsel for appellant and the point is not disputed by the opposite party that according to Hindu law, as it stands now, a Hindu female in possession of an estate for her life only has an absolute control over the income and can dispose of it in any manner she likes. If she leaves behind any such income, the question as to whether the same should be treated as an accretion to the estate or should go to her heirs, will depend upon the circumstances and facts of each case. In the case before me, however, we are not called upon to decide any such question. Here what I have to see is whether a co- sharer, in an undivided village, who has been made under a decree of a Court to pay a sum in excess of the amount due to a Hindu female holding the position of a co-sharer is entitled to get back the excess amount. In my opinion, the view taken by the learned District Judge is correct and must therefore, be affirmed. When a Hindu female who has possession over an estate for her life, sues a co-sharer for profits, she does so in representative capacity. She has no personal claim whatsoever against any of the co-sharers in the village in which she is a co-sharer. A Hindu widow not in possession of the estate would not be able to recover anything by way of profits from another co-sharer. Her claim would be defeated on the ground that she is not a co-sharer in the village and is therefore, incompetent to sue for profits.

4. The position, however, becomes different when she is in possession. She can insist that she should be allowed profits of the share in her possession and that claim cannot be resisted. But if she institutes a suit for profits against another co-sharer or a lambardar, she does so as representing the estate. The co-sharer or lambardar against whom she makes a claim pays her profits of the share in her possession, not because she has any personal claim in respect of it but because the estate in her possession is entitled to these profits. The very foundation of the claim of the widow for profits in a case of this description, rests on her possession of the estate, I have, therefore, no doubt in my mind that when any payment is made by a co sharer to a widow in possession of an estate, it is because she represents the estate and not in her personal capacity. If a widow realizes from another co-sharer more than the amount due, then the liability for a refund of the excess amount realized would rest on the estate and so the estate will be liable. In the case before me Mt. Ganga Devi realized a sum which was in excess of the amount due to her and, therefore, the respondent who had paid this excess is entitled to recover it from the estate, which has now come in possession of the reversioners of the last male-holder. Mt Ganga Devi, in her suit for the recovery of profits, represented the state and, therefore, the defendant-respondent is entitled to recover the amount realized from him in excess of the amount which was actually due. For the reasons given above, I dismiss the appeal with costs. Leave to file a Letters Patent appeal is granted.


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