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Haji Mohammad Said Khan Vs. Kunwar Darshan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All835
AppellantHaji Mohammad Said Khan
RespondentKunwar Darshan Singh and ors.
Cases ReferredDebi Prasad v. Golap Bhagat
Excerpt:
- - sundar kunwar had relinquished all her rights and interest in the property in favour of hori singh and had therefore extinguished her widow's estate, with the result that hori singh became the permanent owner, and that, as such, he was perfectly competent to transfer the property. the defendant is in this unfortunate position, that the scribe of the two documents, janki prasad, as well as hori singh and the attesting witnesses, nathu khan, kifayat ullah khan, and mohan lal, are all dead. the plaintiffs were, therefore, fully justified in bringing this suit on the ground that the deed of transfer in favour of hori singh was not good beyond the lifetime of the widow......two widows; one of whom died in 1890 and the other, mt. sundar kunwar, died in 1917. in 1903 hori singh was the next reversioner, who would have succeeded to the estate if mt. sundar kunwar had died then. on the 21st september 1903 she executed a deed of transfer in favour of hori singh, purporting to surrender all her interest in the house in dispute. on the 22nd september 1903 a sale-deed was executed by hori singh in favour of the defendant-appellant, haji mohammad said khan, and both these documents were presented for registration simultaneously between 1 and 2 o'clock on the 22nd september, and both were registered consecutively. on the death of the widow the plaintiffs, claiming to be the next reversioners, brought this suit for recovery of possession. the pedigree on which.....
Judgment:

1. This is a defendant's appeal, arising out of a suit for recovery of possession of a house brought by the reversioners of Naik Rai Singh, who was the last male owner. He died some time in 1876 leaving two widows; one of whom died in 1890 and the other, Mt. Sundar Kunwar, died in 1917. In 1903 Hori Singh was the next reversioner, who would have succeeded to the estate if Mt. Sundar Kunwar had died then. On the 21st September 1903 she executed a deed of transfer in favour of Hori Singh, purporting to surrender all her interest in the house in dispute. On the 22nd September 1903 a sale-deed was executed by Hori Singh in favour of the defendant-appellant, Haji Mohammad Said Khan, and both these documents were presented for registration simultaneously between 1 and 2 o'clock on the 22nd September, and both were registered consecutively. On the death of the widow the plaintiffs, claiming to be the next reversioners, brought this suit for recovery of possession. The pedigree on which they relied was a very long one and is printed at p. 4 of our paper-book. It must be said to the credit of the defendant that he did not choose frivolously to deny this long pedigree, but admitted it. The written statement filed on his behalf, which obviously is the result of legal advice obtained by him, is by no means artistically drawn. The pleas, if examined strictly, amount to these, namely, that Mt. Sundar Kunwar had relinquished all her rights and interest in the property in favour of Hori Singh and had therefore extinguished her widow's estate, with the result that Hori Singh became the permanent owner, and that, as such, he was perfectly competent to transfer the property. Para. 4 was curiously worded and it raised the plea that the transfer by Mt. Sundar Kunwar and the sale by Hori Singh to the defendant amounted to an alienation for consideration by the widow with the consent of the reversioner. We have referred to these pleas because much stress has been laid by the learned Subordinate Judge on the way in which the written statement was drafted, and because he has come to the conclusion that the defendant cannot be allowed to get over this tamliknama. When the time for the framing of the issues came the parties understood what was meant by the plea in para 4, and there is no doubt that the learned Subordinate Judge himself understood what was meant by it. Issue 3, which was framed by him, was in the following words:

Is the sale made by Hori Singh in favour of the defendant to be looked upon as a transfer for consideration with the consent of the next reversioner on behalf of the widow herself. If so, how does that affect the case.

2. The plaintiffs apparently led no evidence at all. On behalf of the defendant, only the defendant himself was examined as a witness. This is the entire evidence apart from certain documents which were filed by either party. The learned Subordinate Judge has come to the conclusion that there could be no surrender of the estate to the next reversioner, inasmuch as it was a gift of a part of the estate only. We may note that the defendant did not suggest to the Court below that there was any other property left by the widow after the deed of transfer of 1903. It has, however, been assumed that this was not a transfer of the entire estate then in her possession and the learned advocate for the appellant has not challenged the soundness of this assumption.

3. In our opinion it is not fair to the defendant to pin him down to the strict wording of the written statement which must have been drafted by his legal adviser. The issue before the parties was clear, and we think that there is no doubt that the defendant did mean to put forward the case that the two transactions were really part and parcel of one transaction, which was a sale by the widow with the consent of the next reversioner. The defence, therefore, cannot be struck out on the ground that it was not raised in the written statement.

4. The main question of fact which we have to consider is whether the defendant has succeeded in proving that the two documents, which on their face value appear to be in fact two separate transactions, were really part and parcel of one transaction of a sale by the widow. The defendant is in this unfortunate position, that the scribe of the two documents, Janki Prasad, as well as Hori Singh and the attesting witnesses, Nathu Khan, Kifayat Ullah Khan, and Mohan Lal, are all dead. Thus, the persons, who, on the face of these documents, had any connexion with these transactions, are all dead except the vendee, Muhammad Said Khan. We have thus the solitary evidence of Muhammad Said Khan as to what actually happened. It must be conceded in his favour that the learned Subordinate Judge, who heard him, has not in his judgment stated that he disbelieves him; in fact he has not criticized his evidence so for as its truth goes. (The judgment then discussed the evidence and proceeded.) On the evidence of Muhammad Said Khan and the surrounding circumstances of the case, we are of opinion that they were really drafted separately on the advice of the defendant's pleader, and that the real transaction was a sale by the widow.

5. The next question is whether the defendant has succeeded in showing that this transfer is binding on the reversioners. Had Hori Singh survived the widow and the succession opened out to him, there would have been no difficulty, and he would undoubtedly have been estopped. It is however, admitted that he predeceased the widow. The plaintiffs, therefore, are not absolutely bound by any admission or consent of Hori Singh. At the same time it is not denied on their behalf that Hori Singh was the next immediate reversioner. In fact, on the pedigree given by the plaintiffs themselves, he was much nearer in degree to Naik Rai Singh than the present plaintiffs are. Having found that the two deeds evidenced one transaction, we can have no doubt in our minds that Hori Singh was a consenting party to this transfer. The consent of a reversioner is not conclusive proof of the existence of legal necessity. It raises a presumption of the existence of such necessity. The law on this point has been laid down by their Lordships of the Privy Council in the case of Rangasami Gounden v. Nachiappa Gounden A.I.R. 1918 P.C. 196. After discussing the various authorities their Lordships summarised the law at p. 536 in the form of two propositions, the second of which is:

When the alienation of the whole or part of an estate is to be supported on the ground of necessity, then, if such necessity is not proved aliunde, and the alienee does not prove anywhere on his part an honest belief in the necessity, the consent of such reversioners, as might fairly be expected to be interested to quarrel with the transaction will be held to afford presumptive proof which, if not rebutted by contrary proof, will validate the transaction as a right and proper one.

6. Their Lordships quoted with approval a similar proposition laid down in the Full Bench case of Debi Prasad v. Golap Bhagat [1913] 40 Cal. 721 where it was remarked

that alienation by way of mortgage by a Hindu widow as heiress of a portion of the estate of her deceased husband without proof either of legal necessity or of reasonable inquiry and honest belief as to its existence, but with the consent of the next reversioner for the time being, will be valid and binding on the actual reversioner, if the presumption of legal necessity or a reasonable inquiry and honest belief raised by such consent is not rebutted by more cogent proof.

7. In view of this statement of the law it follows that the defendant, even though he did not prove the actual existence of any legal necessity or any bona fide inquiry as to the necessity by him, or even an honest belief on his part that such necessity existed, has nevertheless discharged that burden in the first instance by proving consent of Hori Singh, and that the transaction would be binding on the reversioners until they led cogent evidence to the contrary.

8. In this particular case the plaintiffs have led no evidence to show that there was no legal necessity or that the consent of Hori Singh was obtained by fraud. In the absence of such evidence, we are of opinion that the presumption raised by the consent of Hori Singh has not been rebutted.

9. We must at the same time point out that on the face of the two documents they evidence two independent transactions. The plaintiffs were, therefore, fully justified in bringing this suit on the ground that the deed of transfer in favour of Hori Singh was not good beyond the lifetime of the widow. Their case has broken down, because of the plea that, although the two deeds were separate documents, they really evidenced one transaction. We accordingly allow this appeal, and, setting aside the decree of the Court below dismiss the plaintiffs' suit, but we direct that the parties should bear their own costs in both the Courts.


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