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Ram Singh and anr. Vs. Brij Raj Saran Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All283
AppellantRam Singh and anr.
RespondentBrij Raj Saran Singh
Cases ReferredBhugwandeen Doobey v. Myna Baee
Excerpt:
- - 280. 12. in the present case the transaction though not in the form of a sale, was in reality a permanent alienation of the plot in dispute by the lady for the purpose of raising money without, any legal necessity for doing so, and as such the permission granted by the lady could only hold good for her lifetime, and the courts below were right in holding that the plaintiff-respondent was in the circumstances of the present case entitled to the reliefs prayed for in the plaint. 14. in my opinion the decrees of the courts below are perfectly correct and i dismiss this appeal with costs including in this court fees on the higher scale......portion of the said plot.2. one khushal singh was admittedly the owner of the village in which the plot in dispute is situate. on his death he was succeeded by his two widows lachmi bai and rani raghubir koer. it was alleged by the defendants, and for the purpose of this appeal, i will assume the allegation to be correct, that lachmi bai was in possession of the village in which the plot in dispute lies and of some more villages and the other widow, rani raghubir koer was given possession of the remaining villages that belonged to khushal singh.3. the plaintiff-respondent is the adopted son of khushal singh and has now succeeded to the estate of khushal singh.4. the suit, giving rise to the present appeal, was brought by the plaintiff-respondent, mainly, on the allegation that the.....
Judgment:

Iqbal Ahmad, J.

1. This is a defendants' appeal and arises out of a suit for possession of a plot of land by ejectment of the defendants and by removal of a building erected by the defendants on a portion of the said plot.

2. One Khushal Singh was admittedly the owner of the village in which the plot in dispute is situate. On his death he was succeeded by his two widows Lachmi Bai and Rani Raghubir Koer. It was alleged by the defendants, and for the purpose of this appeal, I will assume the allegation to be correct, that Lachmi Bai was in possession of the village in which the plot in dispute lies and of some more villages and the other widow, Rani Raghubir Koer was given possession of the remaining villages that belonged to Khushal Singh.

3. The plaintiff-respondent is the adopted son of Khushal Singh and has now succeeded to the estate of Khushal Singh.

4. The suit, giving rise to the present appeal, was brought by the plaintiff-respondent, mainly, on the allegation that the defendants-appellants took unlawful possession of the said plot in July 1909, and without any right built a hut thereon and began to throw rubbish on the said plot and this unlawful act of the defendants constituted an interference with the plaintiff's possession and as such the plaintiff was entitled to the reliefs prayed for in the plaint.

5. The defence to the suit was that the defendants had not taken unlawful possession of the plot in dispute, but on the contrary had obtained the said plot on payment of a nazrana of Rs. 200 to Mt. Lachmi Bai for the purpose of abadi and having thus secured the permission of the then zamindar had erected an enclosure thereon and were using the same for tying cattle and storing fodder. It was further contended by the defendants that the enclosure in dispute was appurtenant to their holding and as such the plaintiff had no right to interfere with the defendants' possession.

6. Both the Courts below have decreed the plaintiff's suit. The defence that the plot in dispute was appurtenant to the defendants' holding was not accepted by the trial Court, and there being no discussion en the point in the judgment of the lower appellate Court. I must assume that the point was not pressed on behalf of the defendant-appellants in the lower appellate Court The learned Counsel for the appellants has not challenged the decrees of the Courts below on the ground that the plot in dispute did appertain to the defendants holding and as such I am not concerned with that defence in the present appeal.

7. Both the Courts below have proceeded mainly on the ground that Mt. Lachmi Bai, being in possession as a Hindu widow, had no power to grant a plot of land measuring ten biswas on the receipt of a nazrana to the defendants-appellants and that the permission given by her the defendants to erect a building on the said plot could enure only for the lifetime of the lady and could not bind the plain tiff-respondent.

8. In appeal before me the decrees of the Courts below are challenged mainly on two grounds:

9. Firstly, that the plaintiff's case being that the constructions in dispute had been made without the permission of the zamindar and it having been eventually found that they were made with the permission of the zemindar for the time being the suit should have been dismissed. The second point urged in support of the appeal is that the permission given by Mt. Lachmi Bai was in the ordinary course of management of zemindari and that no question of legal necessity arose in the case.

10. True it is that the plaintiff's allegation that the defendants took an unlawful possession of the plot in dispute has not been found to be true, but the mere fact, that the plaintiff-respondent over-stated his case in the plaint does not justify, in the circumstances of the present case, a denial of the relief to which the plaintiff respondent has been found to be entitled by the Courts below. The first issue framed by the trial Court was definite and clear and raised the question whether or not the defendants were in possession of the plot in dispute with the permission of the plaintiff's predecessor and whether that permission was or was not binding on the plaintiffs. In face of such clear issue it cannot be urged that either party was prejudiced by some false allegations contained in the pleadings of either of the parties and did not understand the point in dispute. As a matter of fact, the question of fact forming the subject-matter of Issue, No. 1 was decided in the defendants' favour by the trial Court and the judgment of the lower appellate Court proceeds on the assumption that finding of the trial Court on that question of fact was correct. In short, the defendants allegation that they were permitted by the then zemindar to occupy the plot in dispute has been held proved, and it is only on the ground that the permission given by the Hindu widow was not binding on the present plaintiff, that the suit has been decreed. For the reasons given above I am of opinion that the first ground urged in support of the appeal is untenable and must be rejected.

11. As already stated, the decrees of the Courts below are further impugned on the ground that though Mt. Lachmi Bai was in possession as a Hindu widow, she was competent to grant leases and do other acts in the ordinary course of management, and as such the plaintiff could not ignore the permission given by the lady, on receipt of a premium, to the defendants-appellants to occupy the plot in dispute. It is true that a Hindu widow is not a tenant for life but is the owner of her husband's property subject to certain restrictions on alienation and subject to its devolving upon her husband's heirs upon her death and is competent in certain cases to grant leases, but in each case 'the question is one of prudence or necessity and general benefit' vide Dayamani Debi v. Srinibash Kundu [1905] 33 Cal. 842. A Hindu widow in possession is undoubtedly entitled to do ordinary acts of management, but whether in a particular case, a particular action of the widow was in the ordinary course of management or not must be decided with reference to the circumstances of that case, In the present case it is clear that the defendants who are in possession of other houses in the village were granted permission to occupy a plot measuring ten biswas on payment premium of Rs. 200 and no yearly rent was reserved. The result is, that to all intents and purposes, the lady received the value of the said plot from the defendants, and her action in allowing the defendants to occupy the said plot without payment of a reasonable rent was prejudicial to the interests of the reversionary heirs. This the widow was not competent to do: vide Jugal Kishore v. Gomti Kuar [1914] 25 I.C. 280.

12. In the present case the transaction though not in the form of a sale, was in reality a permanent alienation of the plot in dispute by the lady for the purpose of raising money without, any legal necessity for doing so, and as such the permission granted by the lady could only hold good for her lifetime, and the Courts below were right in holding that the plaintiff-respondent was in the circumstances of the present case entitled to the reliefs prayed for in the plaint.

13. Apart from what has been said above, it appears to me, that the decrees of the Courts below can be supported yet on another ground. Khushal Singh was succeeded by his two widows named above and they, therefore, got into possession of the estate of Khushal Singh as co-parceners and between the undivided co-parceners there can be no alienation by one without the consent of the other: vide Bhugwandeen Doobey v. Myna Baee [1867] 11 M.I.A. 487. In this case it was not alleged by the defendants that there was such a partition between the two widows of Khushal Singh as could put an end to the co-parceners' rights of either in the villages in their possession. In this view Lachmi Bai alone was not competent to grant permission to the defendants-appellants to occupy the plot in dispute for ever.

14. In my opinion the decrees of the Courts below are perfectly correct and I dismiss this appeal with costs including in this Court fees on the higher scale.


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