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Jamna Kunwar Vs. Ramhit Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported inAIR1915All166; 28Ind.Cas.496
AppellantJamna Kunwar
RespondentRamhit Singh and anr.
Cases ReferredRadha Shyama Sirvar v. Joy Ram Senapati
Excerpt:
hindu law - widow--gift with consent of next reversioner, validity of. - - it was said that ramhit singh and phirae singh persuaded musammat anari kunwar and musammat jamna kunwar that they were better able to manage the zemindari property left by bhagwan singh, that the deed which was executed was understood by the two ladies to be merely a power-of-attorney conveying the right to ramhit singh and phirae singh to manage the estate. the mother was perfectly competent to relinquish her expectation of the life-interest, and by her doing so the plaintiffs became next reversioners and the widow became ipso fact competent to gift the property or, to be more exact to surrender her life-interest therein......of musammat anari kunwar, the patwari of the village made a report and had the name of musammat jamna kunwar entered and their names removed. they applied to the revenue court for correction of this mistake but in vain. thus they were forced to come into the civil court and to ask that a decree might be passed in their favour declaring' that they are in proprietary possession of the property in dispute and if this be not found proved by the court below, that a decree awarding possession in their favour may be passed.3. in the written statement the execution of the deed of gift was denied. it was said that ramhit singh and phirae singh persuaded musammat anari kunwar and musammat jamna kunwar that they were better able to manage the zemindari property left by bhagwan singh, that the.....
Judgment:

George Knox, J.

1. The property in dispute in this appeal is property at one time belonging to Bhagwan Singh. To this property some nine years ago Musammat Anari Kunwar, his widow, succeeded and came into possession of the fame.

2. On the 13th of April 1909, Musammat Anari Kunwar and with her Musammat Anari Kunwar, who was at that time, had the succession opened out, the next reversioner, executed a deed of gift in favour of Ramhit Singh and Phirae Singh. In this deed of gift they set themselves out as being entitled to and in possession of the property in dispute and they transferred the whole of their properly in favour of the aforesaid Ramhit Singh and Phirae Singh. Ramhit Singh and Phirae Singh alleged that they came into possession and are in possession of the properly in dispute; they add, however, that upon the death of Musammat Anari Kunwar, the patwari of the village made a report and had the name of Musammat Jamna Kunwar entered and their names removed. They applied to the Revenue Court for correction of this mistake but in vain. Thus they were forced to come into the Civil Court and to ask that a decree might be passed in their favour declaring' that they are in proprietary possession of the property in dispute and if this be not found proved by the Court below, that a decree awarding possession in their favour may be passed.

3. In the written statement the execution of the deed of gift was denied. It was said that Ramhit Singh and Phirae Singh persuaded Musammat Anari Kunwar and Musammat Jamna Kunwar that they were better able to manage the zemindari property left by Bhagwan Singh, that the deed which was executed was understood by the two ladies to be merely a power-of-attorney conveying the right to Ramhit Singh and Phirae Singh to manage the estate. Jamna Kunwar said that the ladies had all along been in possession of the property in suit ever since the death of Musammat Anari Kunwar.

4. The Court of first instance dismissed the claim; it held that the fraud alleged by Musammat Jamna Kunwar was not proved, that execution of the deed of gift by the two ladies was established and that Musammal Jamna Kunwar had at the time of executing the deed only a right in expectancy which she could not legally transfer. The deed, therefore, under which Ramhit Singh and Phirae High sued conferred no title upon them.

5. The case was taken to the Court of the District Judge of Jaunpore. The view taken by that learned Judge was that the deed of gift was a deed properly and duly executed by the ladies with knowledge of what they were doing, that no fraud in this matter had been proved to the satisfaction of the lower Appellate Court. It went on to hold that the deed of gift was not to a stranger, it was to the reversioners in expectancy, who would have been next reversioners' in the event of Bhagwan's mother pre-deceasing' his widow. The mother was perfectly competent to relinquish her expectation of the life-interest, and by her doing so the plaintiffs became next reversioners and the widow became ipso fact competent to gift the property or, to be more exact to surrender her life-interest therein. It accordingly allowed the appeal and decreed the plaintiffs' claim for possession. There was a third defendant, who, it held, was unnecessarily impleaded, but we tire not concerned with him in this appeal.

6. Musammat Jamna Kunwar has come to this Court and raised six pleas attacking the judgment of the lower Appellate Court. The sixth plea was not argued. Of the remaining pleas four attacked the deed of gift on the grounds that (1) it was not proved that the defendant had any independent advice, (2) that the gift had never been given effect to and the plaintiffs not having obtained possession under the deed cannot now sue for possession, (3) that the defendent had no interest in the property in suit on die date when the deed of gift was executed and the deed conveyed no title to the plaintiff's, (4) that the gift of the defendant was a gift of an expectancy and was invalid. The fifth plea raised was that the plaintiffs were stopped from bringing the present suit. No argument was addressed to the Court on this last plea,

7. It is found by the lower Appellate Court that Musammat, Jamna Kunwar knew what she was doing when she executed the deed of gift. It is a landing of fact and if there was any necessity I agree that that finding of fact is a proper and right finding.

8. My attention was directed in the course of the arguments to the written statement. Paragraph 16 of that statement says that Musammat Jamna Kunwar and Musammat Anari Kunwar had been all along in possession of the property in dispute since the death of Bhagwan Singh and since the death of Musammat Anari Kunwar, Jamna Kunwar had alone been in possession; the plaintiffs had never been in possession of the property. The lower Appellate Court has also held that the plaintiffs never have rein, in possession. Viewed then from the standpoint taken by Musammat Jamna Kunwar in the written statement, the deed of gift was a deed of gift of the property in dispute executed by her when in possession of the property, by whatever means that possession was obtained. The deed was a deed executed by Musammat Anari Kunwar then in possession of her deceased husband's estate and assented to by Musammat Jamna Kunwar, the next reversioner, in favour of the present plaintiffs who were then reversioners and now are the next reversioners.

9. A great deal of argument was addressed to the Court upon the ground that when Musammat Jamna Kunwar executed the deed of gift, she was trying to effect a transfer of a right in expectancy. Such transfer is forbidden by the Transfer of Property Act and in consequence, it was urged, conveyed no title of any kind to the plaintiffs. It seems to me that this is practically an attempt to get Ibis Court to look at the transaction-from a wrong point of view. In Ramphal Rai v. Tula Kuari 6 A. 116 : A.W.N. (1883) 293 a Pull Bench of this Court did hold that the consent of the heir-presumptive to an alienation was not sufficient to defeat the rights of a more remote reversioner. The view taken by this Court was considered by their Lordships of the Privy Council in. Bajrangi Singh v. Manokarnika Bakhsh Singh 30 A. 1 : 3 M.L.T. 1 (P.C.) : 12 C.W.N. 74 : 9 Bom. L.R. 1348 : 6 C.L.J. 766 : 5 A.L.J. 1 : 35 I.A. 1 : 17 M.L.J. 0. Their Lordships, however, held that the view in ken by this High Court in the former case 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.' They considered that the Allahabad High Court was trying to establish an unnecessary limitation upon the widow's power of alienation. They pro forced to follow the view taken in Radha Shyama Sirvar v. Joy Ram Senapati 17 C. 896 where it was held '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.

10. In the present case Musammat Jamna Kunwar was the next heir, presumptive, she beyond all doubt consulted to the transfer and is no longer entitled to oppose the same.

11. I agree with the lower Appellate Court that when the dead was executed and under the circumstance in which it was executed, Musammat Anari Kunwar could surrender her life-interest in the estate, if Musammat Jamna Anari consented to the transfer.

12. I accordingly dismiss this appeal with costs, which in this Court will include fees on the higher scale.


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