R.N. Misra, J.
1. This second appeal is by the sole defendant in a suit for title, declaration that her interest is not bound by the alienation by her father in favour of the defendant on 7-9-1959 under Ext. B and to recover possession. The defendant has lost in the Courts below.
2. The plaintiffs case was that her father Bachha Das was the owner of the suit property and he died leaving behind the plaintiff who is his daughter as the sole heir. Bachha executed a settlement on 5-1-1959 giving all his properties to the plaintiff and the plaintiff has been in possession ever since then. The defendant Khandha happens to be a cousin of Bachha and when he disturbed her possession, proceedings under Section 144, Criminal Procedure Code were initiated which were subsequently converted to proceedings under Section 145, Criminal Procedure Code. Possession was, however, found in favour of the defendant. Therefore the plaintiff has come with the present suit.
3. The defence taken was that the property would be valued at Rs. 12,500/-. Ext. B, the sale deed in his favour is also for the said land. In the circumstances the learned trial Judge had no pecuniary jurisdiction to try the suit. It was further claimed that the suit was barred by limitation. Bachha had cancelled the settlement dated 5-1-1950 (Ex. 3) and thereafter had executed the Ext. B, the sale deed in favour of the defendant. The defendant claimed to be in possession all throughout after the same.
4. The learned trial Judge found that the suit had been properly valued and the Court had jurisdiction. He further found that the settlement deed Ext. 3 was valid and binding and therefore Bachha had no title in him to alienate the properties under the Ext. B in favour of the defendant. On these findings he decreed the suit.
5. The lower appellate court affirmed the findings of the learned trial Judge and held that the plaintiff had acquired an interest in praesenti in the suit property under Ext. 3 : Ext. C, the cancellation deed dated 20th July 1959 was not valid and Bachha had no alienable interest to convey under Ext. B.
6. In the memorandum of appeal before the lower appellate court the question of want of pecuniary jurisdiction of the learned trial Judge had not been raised. When an attempt to raise that point was made before the lower appellate Court, the learned appellate Judge did not give the permission to agitate the question of jurisdiction. Order 41, Rule 2 of the Code of Civil Procedure provides thus :
'The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in. the memorandum of appeal shall not be confined to the grounds of objection set forth in memorandum of appeal or taken by leave of the Court under mis rule : .....'
The learned appellate fudge looked into this aspect of the matter in a part of his judgment, but ultimately held :
'I do not find any necessity to permit the appellant to agitate the question of jurisdiction. In that view, the objection raised regarding the valuation and jurisdiction is overruled.'
7. Mr. Murty, learned counsel for the appellant raises two contentions before me. Firstly he contends that the defendant had taken the plea in the written statement that the Court had no pecuniary jurisdiction to entertain the suit. An issue being issue No. 4 was specifically raised and had erroneously been determined by the trial Court. To the facts of the present case Section 7(iv-a) of the Court-fees Act as amended in Orissa was directly applicable. One of the prayers in the suit was for a declaration that Ext. B was not binding on the plaintiff. Therefore, the learned trial Judge clearly went wrong in holding that the claim was not to be valued at Rs. 12,500/-, the consideration money under Ext. B. Even if a ground had not been included in the memorandum of appeal challenging the finding on issue No. 4, the Court was not going into the matter and as the learned appellate Judge as a matter ol fact has gone into the question and has taken a wrong view of the law, in second appeal, the appellant should be permitted to canvass that aspect.
8. Mr. Rath, learned Counsel for the respondent contends that the second relief in the suit was redundant. In view of the fact that the plaintiff was not a party to the said document it was open to the plaintiff to ignore it and claim title on the basis of the settlement deed dated 5-1-1959 in her favour. To find title on the basis of the settlement deed, it necessarily would involve an enquiry about the validity of the sale deed dated 7-9-1959 and thus the second relief in the suit is redundant on the principle that the plaintiff is not 'eo nomine', a party to Ext. B, she could proceed by ignoring the document and therefore this is not a case which strictly calls for cancellation of a document and does not give rise to the application of Section 7(iv-a) of Court-fees Act.
9. There is a peculiar feature in this case. On 5-1-1959 Bachha executed the settlement deed in favour of the plaintiff, which has been marked as Ext. 3. On 20th July, 1959, the said document was cancelled by Ext. C. On 7-9-1959, a sale deed came to be executed by Bachha in favour of the defendant Kandha, Again on 8th March, 1960, Bachha executed a cancellation deed (Ex. 1) cancelling Ext. B itself.
10. On a consideration of the aforesaid materials I would accept the position that the second relief in the suit was redundant; plaintiff being not a party to the document (Ext. B) was not bound to have it cancelled in order to succeed in her suit; the provisions of Section 7(iv-a) of the Court-fees Act as amended in Orissa, therefore, do not apply to the facts of the present case. In any event, the lower appellate court having not permitted the defendant-appellant to batter the findings under issue No. 4, I would not also permit the defendant to question the same in the second appeal. This appeal will proceed on the basis that the learned trial Judge had jurisdiction to entertain the suit.
11. This leads me to examine the only other contention as to whether Ext. 3 created an absolute conveyance in favour of the plaintiff so that Bachha had no alienable interest under Ext. B. The material portions of Ext. 3 may be translated thus :
'Since you are nursing me and also taking care of me, I out of affection, have settled this property described fully in the schedule and have created right in your favour. So long as I am alive, with the usufructs of the land, you and I will be maintained. You without my knowledge and I without your knowledge cannot execute any document touching this property. After my death you would perform my obsequies and you and your descendants shall enjoy and possess the properties from generation to generation with full rights.'
Mr. Murty relies on a decision of this Court in the case of Kshetra Sahu v. Shyama Sahu, 24 Cut LT 127 = (AIR 1958 Orissa 254) wherein a grant came to be interpreted by Mohapatra, J. The terms of the grant were to the following effect as would appear from a part of the judgment.
'The land described in para 3 of the document is my self-acquired property and I am enjoying it with absolute rights without any dispute. None else has got any right or title or claim to this land. You are my daughter. You have no properties for your maintenance, there is great need and so for your maintenance you are depending on me. For your maintenance I am giving (Pradana) the para 3 scheduled lands worth Rs. 1,500/- and I haveput you in possession of the lands and have ivested myself of my rights from the lands. From today this land has become yours. You will keep this land in your possession and from out of its income, you will pay the Government revenue and with the balance usufruct you will maintain yourself and if necessary you can sell and mortgage or transfer the land to meet your maintenance and you can do whatever you like regarding the land. Regarding this land at any time in future, neither I nor my heirs and successors can make any claim against you .....'
Ultimately it was held in this case that only a life interest for the grantee was created and on the death of the grantee, the property reverted to the grantor or his heirs. Relying on the principle of this case Mr. Murty's contention is that Ext. 3 must be held to have created only a limited interest in favour of the plaintiff and as such there cannot be a loss of total title in Bachha so as to justify the conclusion of the lower appellate Court that Bachha had no transferable interest by the time he came to execute the sale deed Ext. B. Ext. B does not purport to convey the residuary title of Bachha and it proceeds on the basis that Bachha was the full owner of the property in possession and purported to part with title and possession together.
12. Mr. Rath, learned Counsel for the plaintiff-respondent contends that Ext. 3 was an absolute conveyance of title in regard to the subject-matter, therefore any subsequent limitation was bad law. In support of his proposition he relies on the decision of the Supreme Court in the case of Ram-kishorelal v. Kamalnarayan, AIR 1963 SC 890. Their Lordships of the Supreme Court came to hold that if title was conveyed and in the subsequent clauses of the document, restrictions on alienations were imposed, the clauses imposing restriction should be held as bad.
'Again, even where a particular word has to a trained conveyancer a clear definite significance and one can be sure about the sense in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so equally skilled in the art of conveyancing. Sometimes it happens in the case of documents, whether they are testamentary or non-testamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given.'
As it appears, there is a clear averment in the earlier portion of Ext. 3 that the property described in the schedule is settled and a right to the property is created. Thereafter a restriction was sought to be imposed on the right to alienate during the lifetime of the grantor and there was a further averment made that the property would be jointly enjoyed. The statement that neither the grantor nor the grantee would be in a position to alienate during the lifetime ofi the grantor without consent runs counter to the creation of title in the grantee. I would, therefore, hold that in terms of the principle indicated in the aforesaid decision of the Supreme Court, the subsequent clauses are not to be given effect to and title be held to have passed under Ext. 3 to the daughter. 13-14. Once it is found that Ext. 3 conveyed good title in respect of the property to the plaintiff, it must necessarily follow that Bachha had no subsisting interest in such property on the date when he came to execute Ext. B, and as such the defendant under that document did not obtain title so as to obstruct the title of the plaintiff.
15. I would, therefore, hold that the plaintiff was the absolute owner of the suit land under the settlement deed dated 5-1-1959 and is entitled to recover possession of the disputed property.
16. The claim for mesne profits seems not to have been pressed in the Courts below and no decree for such mesne profits has therefore been granted.
17. The appeal fails and is dismissed. The plaintiff would be entitled to her costs throughout.