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Harihar Ojha Vs. Dasarathi Misra - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKolkata
Decided On
Judge
Reported in(1906)ILR33Cal257
AppellantHarihar Ojha
RespondentDasarathi Misra
Cases ReferredBijay Gopal Mukerji v. Nil Ratan Mukerji
Excerpt:
hindu law - alienation--hindu widow--limitation--suit by reversioner for possession--limitation acts (xv of 1877) articles 91, 141. - pargiter, j.1. this is a suit by an alleged reversioner to recover certain property, which had been alienated by a hindu widow. the alienations were made by four sale-deeds in the years 1871, 1875 and 1893, and the plaintiff alleges that they were made without legal necessity.2. the defendants pleaded limitation and legal necessity, and denied that the plaintiff was the next reversioner. but all these issues were found by the first court in the plaintiff's favour; and when the defendants appealed to the subordinate judge, they raised only one question, namely, that of legal necessity, while any objection on the ground of limitation is said to have been expressly abandoned. the subordinate judge found the issue of legal necessity against the defendants and affirmed the munsiff's decree in.....
Judgment:

Pargiter, J.

1. This is a suit by an alleged reversioner to recover certain property, which had been alienated by a Hindu widow. The alienations were made by four sale-deeds in the years 1871, 1875 and 1893, and the plaintiff alleges that they were made without legal necessity.

2. The defendants pleaded limitation and legal necessity, and denied that the plaintiff was the next reversioner. But all these issues were found by the first Court in the plaintiff's favour; and when the defendants appealed to the Subordinate Judge, they raised only one question, namely, that of legal necessity, while any objection on the ground of limitation is said to have been expressly abandoned. The Subordinate Judge found the issue of legal necessity against the defendants and affirmed the Munsiff's decree in the plaintiff's favour.

3. Three of the defendants have now appealed, and the only contention raised before us is one that was never raised in either of the Courts below., namely, that the [suit is not governed by the rule of twelve years' limitation according to Article 141 of the Limtation Act, but by Article 91, which fixes a period of three years. This contention is based upon the ruling in the case of Bijoy Gopal Muherji v. Nil Ratan Mukerji (1903) I.L.R. 30 Calc. 990, in which it was held that an yara lease, which was granted for 60 years by a Hindu widow and which lasted beyond her lifetime was not void on her death, but was only voidable. It is accordingly contended by the learned vakil on the appellant's behalf that the present sale deeds were not absolutely void on the widow's death, but were only voidable; and that it was incumbent on the plaintiff to have these deeds set aside before he could recover the lands.

4. It has been objected on the plaintiff-respondent's side that this new question cannot be raised; but it is a pure question of law arising upon the facts, which have been found; no fresh evidence is required for its decision, such as to warrant the plaintiff in alleging that he would be prejudiced by its being raised. We therefore allow this question.

5. If the case cited applies to the facts of this case undoubtedly these sale-deeds would be not void, but voidable, so that, unless the plaintiff sets them aside, he could not succeed. In that view of the case it would be a necessary part of his suit to set these deeds aside, and the suit would come under Article 91, so that it would be (and this as I understand is not disputed) barred by the law of limitation. The question therefore is, whether that ruling is strictly in point in the present case.

6. In the plaint it is one of the prayers, and the first one, to have it declared that these sale-deeds have become ineffectual and invalid from the time of the widow's death; and after that follows the prayer for khas possession upon a declaration that the plaintiff is the sole heir. I think that this frame of the prayers does not necessarily mean that the plaintiff's case must rest upon the preliminary setting aside of the sale-deeds. That part of their prayers is no doubt barred by limitation, but the other prayers do not necessarily rest on that, and may be treated as separate and independent.

7. On the other hand the learned vakil for the plaintiff-respondent relies upon the ruling in Narmada Debt v. Shoshi Bhusan Bit (1904) S.C.W.N. 802, in which it was held that it was not necessary for a rever-sioner to set aside a sale-deed executed by a Hindu widow before he could recover possession of the property after her death. The particular question then argued before us has been, whether there is any distinction between such leases and sale-deeds, as regards their being void or only voidable. The first-mentioned ruling follows the decision of their Lordships of the Privy Council in the case of Modhusudan Singh v. E.G. Rooke (1897) I.L.R. 25 Calc. 1, in which it was declared that a putni lease granted by a Hindu widow was on the widow's death only voidable and not of itself void. Their Lordships observed there (in dealing with certain documents) as follows:

In considering their effect it must be observed that the putni was not void; it was only voidable: the Raja might elect to assent to it and treat it as valid. Its validity depended upon the circumstances in which it was made. The learned Judges of the High Court appear to have fallen into the error of treating the putni as if it absolutely came to an end at the death of the widow.' The case of Narmada Debi v. Shoshi Bhusan Bit (1904) 8 C.W.N. 802, relied on by the plaintiff-respondent, makes a distinction between sales and leases, though without explaining the distinction in detail. It seems to me that among the 'circumstances' on which, according to the Privy Council case, the validity of a lease would depend, must be placed, not only the question of legal necessity, but also, having regard to the way in which lands are held in this country, the consideration whether the granting of the lease was a prudent act in the management of the property. There appears to me to be a material distinction between sales and leases in this respect. By a sale a widow absolutely alienates property to the permanent deprivation of all those who follow her, but a lease is often a wise and prudent method of managing and improving an estate, and it does not absolutely deprive all her successors of the property. It might, therefore, be reasonably held that a sale by a Hindu widow is of itself void upon her death, but that a lease should not have that character, unless the heir should elect to set it aside on the ground that it had constituted an unjustifiable alienation detrimental to the estate or on some other ground; that is, it would (as their Lordships of the Privy Council explained) be not void but voidable according to the heir's election. If this distinction be sound, then the present case is more similar to that of Narmada Deli v. Soshi Bhusan Bit cited by the plaintiff-respondent than that of Bijoy Gopal Mukerji v. Nil Ratan Mukerji cited by the appellants; and following the former I would hold that these sale-deeds were void and not merely voidable upon the widow's death, and consequently that it was not necessary that the plaintiff should sue to have them set aside. Upon this view this case is governed by Article 141 and not by Article 91, and therefore the objection taken in this appeal must fail.

8. The appeal is therefore dismissed with costs.

Woodroffe, J.

9. While I agree that this appeal should be dismissed, the grounds upon which I have come to that conclusion are somewhat different from those upon which the judgment of my learned brother rests.

10. The plaintiff is the descendant of one Lokenath Misra by his son Bekai Purohit. The latter had three brothers--Lenkai Paharaj, Padmanan Ray and Dharu Santpa. Padmanan had a grandson, one Damodar Misra, who died about sixty years ago, leaving a widow, Apsara Bewa, who took possession of the properties held by him. In these properties she admittedly possessed a Hindu widow's interest only. Though it was denied it has * been found, and it has not been here contested, that the plaintiff was the sole heir of Apsara's husband. The plaint alleges that Apsara shortly after her husband's death sold by two conveyances, dated 13th July and 10th September 1871, portions of her late husband's immoveable estate without legal necessity. The purchaser on the 9th January 1875 sold the properties to another party, who again on the 21st January 1893 resold them to the principal defendants in this suit after the death of Apsara, which took place on the 2nd February 1890, some ten years before the institution of this suit. Upon these facts the plaint prayed that the Court might pass a decree declaring that these various conveyances 'have become ineffectual and invalid from the time of the death of the widow Apsara' and awarding possession of the lands dealt with thereby as the sole heir of Apsara's husband. The defence was threefold--firstly, that the plaintiff was not entitled to sue as heir; secondly, that the alienations were justified by legal necessity and therefore passed an absolute title to the defendants; thirdly, that in any event the suit was barred, as Apsara had died not ten years but more than twelve years before suit. There was no allegation that the reversioner had assented to the alienations either before or after the widow's death. The learned Munsiff found all these issues against the defendants , holding as regards the defence of limitation that as the suit had been brought within twelve years of the widow's death it was not barred.

11. On appeal to the learned Subordinate judge by the defendants, the latters' pleader, as appears from the judgment, stated that he did not wish to attack the finding of the learned Munsiff that the plaintiff was the nearest heir of Apsara's husband and that the suit was not barred by limitation. The only point argued was as to whether there was sufficient evidence of legal necessity. The learned Subordinate Judge found that the purchaser defendants had failed to prove the existence of any legal necessity and dismissed the appeal.

12. On appeal to us the only question which has been argued, is whether the suit was barred by limitation, not on the ground alleged in the pleadings and in both the Lower Courts, viz., that it had not been brought under Article 141 of the Limitation Act within twelve years of Apsara's death, but on the ground that Article 91 of the Limitation Act applied, and that the plaintiff should under that article have brought the suit within three years from the date when the facts entitling the plaintiff to have the conveyances cancelled or set aside became known to him, it being contended on the authority of the decision in Bijay Gopal Mukerji v. Nil Ratan Mukerji (1903) I.L.R. 30 Calc. 990 that the conveyances by the widow were not void but voidable only, that it was necessary before possession could be obtained that these conveyances should be set aside, and that as this had not been done within three years of the death of the widow the whole suit was barred.

13. A preliminary objection was raised that this point could not be taken in second appeal as it had not been pleaded and no evidence had been given with reference thereto; also that this objection to the suit had been waived by the respondent's pleader on the hearing of the appeal to the Lower Court.

14. As regards the first portion of this objection, it would have been necessary, had we been disposed to decree the appeal, to remand the case to take further evidence. It has been said for the appellant that this was not necessary as the date of the widow's death was admitted. Limitation, however, under artiole 91 of that Act, if applicable, does not run from the date of the death of the widow, but from the date when the facts entitling the plaintiff to have the instrument cancelled or set aside became known to him. If this was before her death then limitation would run according to the decision cited from the date of death, such death being one of the facts mentioned in the section. If this was after the death limitation would run from the date when those facts became known.

15. There is no evidence upon this point, but in the view we take of the law applicable it is not; necessary to order a remand.

16. As regards the second portion of the objection, the question of limitation is one of law, and the refusal of the appellant's pleader to urge the point, based though it doubtless was on the view that the law was too settled for argument, was yet a mere admission of law, which as such is in no wise binding upon the appellants in appeal to us.

17. It is to be observed that the same view was taken by the appellants in this appeal, for no such contention as has been urged before us was taken in the memorandum of appeal. Though no notice had been given to the respondents, we allowed the point to be argued.

18. It has, I think, been generally understood, and indeed has been expressly held both by this Court and the Madras High Court, that Article 91 of the Limitation Act is not applicable in a case such as the present one.

19. In Unni v. Kunchi Amma (1890) I.L.R. 14 Mad. 26, which followed Sikher Chund v. Dulputty Singh (1879) I.L.R. 5 Calc. 368, 370 and which was subsequently referred to in Sundaram v. Sithammal (1892) I.L.R. 16 Mad. 811, 315, the Court observed: 'The question is really concluded by authority, for it has been held in case of the guardian, the manager of a Hindu family and the Hindu widow wrongly alienating property, that the suit which may be brought to recover it is not governed by Article 91 of the Limitation Act.'' In Sheo Shankar Gir v. Ram Shewak Chowdhri (1896) I.L.R. 24 Calc. 77 this Court observed: 'We also think that we must hold that Article 91 of the Limitation Act has no application to the present case. A forcible argument was addressed to us on behalf of the respondents in order to induce us to hold that that article applied, and a large number of authorities were cited to us. In no one of them do we find that Article 91 has been applied to an alienation by the manager of an endowment, the manager of an infant heir, a Hindu widow or any other of the persons whose powers are placed in the same footing by Hunooman Prasad Pandey's case(1856) 6 M.I.A. 393 and the cases which follow the decision in that case. On the contrary, in two cases we find express authority that twelve years is the period of limitation in a case of that kind. The case of Unni v. Kunchi Amma (1890) I.L.R. 14 Mad. 26 is a case in many respects similar to the present, and in a case in this Court, Sikher Chund v. Dulputty Singh (1879) I.L.R. 5 Calc. 368, 370, a Division Bench considered that Article 91 was inapplicable.' The question does not appear to have again become the subject of judicial decision until some years later, when the case relied upon by the appellant was decided--Bijay Gopal Mukerji v. Nil Ratan Mukerji (1903) I.L.R. 30 Calc. 990, when it was held that Article 91 was applicable to the facts of that particular case, to which I shall afterwards refer.

20. In the most recent decision, Narmada Debi v. Shoshi Bhusan Bit (1904) 8 C.W.N. 802, which has been relied upon by the learned pleader for the respondent, the assignee of the reversioner sued to recover possession of property sold without legal necessity by the widow of the last full owner. The suit was originally brought as one for the recovery of possession as upon a dispossession, and there was therefore no prayer either to set aside the conveyance or to declare that it was inoperative on the widow's death; but as the alleged possession and dispossession were held not to be established, this fact is immaterial and the suit was decreed with reference to the provisions of Article 141 of the Limitation Act. The appellant in that case relied upon the decision in Bijoy Gopal Mukerji v. Nil Ratan Muherji (1903) I.L.R. 30 Calc 990, which is also relied upon by the appellant in this case, but the Court observed as follows: 'All that we need say with reference to this contention is that this is not a suit to set aside the alienation by the widow. It is a suit to recover possession of the immovable property to which the reversioner became entitled on the death of the Hindu widow, and as such the article or articles of the Limitation Act truly applicable are Article 141 read with Article 136. The case relied upon is a case where a lease was granted by a Hindu widow, and, upon the death of that person, a suit was brought to recover possession by the reversioner by setting aside the lease granted by her. It was held that, in the circumstances of the case, Article 91 of the Limitation Act would apply. That is not the case which we have to deal with here. The appeal is accordingly dismissed with costs.'

21. I agree with the opinion expressed by the Madras High Court, Unni v. Kunchi Amma (1890) I.L.R. 14 Mad. 20, 28, that the decisions of the Judicial Committee relating to the setting aside of adoptions such as Jagadamba Chaodhrani v. Dakhina Mohun Roy Chaodhri (1886) I.L.R. 13 Calc. 308 have no bearing on the present case for reasons which I shall state later when dealing with the question of alienations by a Hindu widow.

22. As regards the limitation applicable in the case of suits by reversioners to recover possession of property, which has been alienated without necessity by a Hindu widow, the principles which are to be gathered from the decided cases appear to me to be these.

23. There can be no doubt that when a person seeks to recover property against an instrument executed by himself or one under whom he claims he must first obtain the cancellation of the instrument, and that the three years' rule enacted by Article 91 applies to any suit brought by such person: Unni v. Kunehi Amma (1890) I.L.R. 14 Mad. 26. The reason why a party seeking to recover property against his own instrument must show that it is voidable or void, as for instance for fraud, is that, as long as an instrument creating a later title is not invalid, his former title cannot prevail: Sundaram v. Sithammal (1892) I.L.R. 16 Mad. 311, 315. The case before the Judicial Committee, Janki Kunwar v. Ajit Singh (1887) I.L.R. 15 Calc. 58, was one of this character. As illustrations of instances of deeds executed by persons under whom the plaintiff claims I may refer to Mahabir Pershad Singh v. Hurrihur Pershad Narain Singh (1892) I.L.R. 19 Calc. 629, in which the parties in possession were so under a deed executed by a person whose heir plaintiff claimed to be, and to Chunder Nath Bose v. Ram Nidhi Pal (1902) 6 C.W.N. 863 where the defendant was in possession by virtue of a kobala executed by the plaintiff's father. In both cases it was and it was held to be necessary to set aside the instruments. The persons, who executed them, had prima facie a right to do so and to pass a title. In the latter case in which it was contended that the kobala was void for failure of consideration, the Court said: 'Now, whether this document is or is not open to the objection taken by the plaintiffs, it is quite clear that, until any objection taken to its operation is sustained, it is a valid and operative document, and that, in order to avoid the effect of its operation against the plaintiffs, the plaintiffs must prove their objection.'

24. Where however the instrument is not that of the plaintiff or of any person through whom he claims, as in the instance of a reversioner seeking recovery of property alienated without necessity or consent by a Hindu widow, the case appears to me to stand upon a different footing. The alienation complained of is not by the plaintiff nor by one through whom he claims, for the reversioner claims, not under the widow, but as heir of her husband. If a person, who prime facie has complete powers of alienation, exercises such powers, the prime facie title being in the transferee, the deed must be set aside. If on the other hand a person possessing a simple life interest alienates, then such alienation is only good to the extent of such interest, and terminates ipso facto at his death. It is not necessary to set it aside. In the decision of the Madras High Court to which I have referred, Unni v. Kunchi Amina (1890) I.L.R. 14 Mad. 26, which has been followed by this Court, Sheo Shankar Gir v. Ram Shewak Chowdhri (1896) I.L.R. 24 Calc. 77, 82, and in which the plaintiffs, who were members of a Malabar Tarwad, sought to recover property alienated by their late Karnavan, who was alleged not to be authorized to make it, the Court observed as follows: 'They have no complaint to make of the manner in which the execution of the instrument was obtained by Saffan Potter, but their charge is that the instrument cannot have the legal operation, which the appellants seek to give to it. In our opinion there is no distinction between this case and other cases where a similar charge is made in respect of an instrument of alienation executed by a person who, not being the full owner of the property, has a conditional authority only to dispose of it. Such are the cases of a guardian of a minor, the manager of a Hindu family, or the sonless widow in a divided Hindu family. In these cases, as was argued by the appellant's vakil, it is not only not necessary, but it is not possible to have the instrument of alienation cancelled and delivered up, because, as between the parties to it, it may be a perfectly valid instrument. All that is needed is a declaration that the plaintiff's interest is not affected by the instrument, and that declaration is merely ancillary to the relief which may be granted by delivery of possession.'

25. As I have pointed out, a Hindu widow stands midway between the cases I have referred to, having neither an absolute nor yet a life interest in the property, but having a conditional authority only to absolutely dispose of it. If the alienation is justified by legal necessity, the full title passes. If it be not so justified, it has been held both in and prior to the Privy Council decision cited, Modhu Sudan Singh v. E.G. Rooke (1897) I.L.R. 25 Calc. 1, that the alienation is good for the widow's life and is therefore not void, but voidable. The reversioner may either consent to it during the widow's lifetime or elect to treat it as valid after her death. If it were ipso facto void he could do neither. What the Judicial Committee in Modhu Sudan Singh v. E.G. Rooke (1897) I.L.R. 25 Calc. 1, have said, as I understand that decision, is this, that a putni lease granted by a Hindu widow, even without legal necessity, does not absolutely come to an end at her death so as to prevent a reversioner electing to assent to it and to treat it as valid. If he has done so, he of course cannot set it aside. The Judicial Committee have not said that, if the reversioner does not assent to the alienation, it will continue operative until it is set aside in a suit brought within the period prescribed by Article 91 of the Limitation Act. If an alienation not supported by necessity is made and the reversioner does not elect to assent to it, then in my opinion it is not necessary to set it aside. The alienation has in such case on the death of the widow ceased to have any operation--Raj Bahadoor Sing v. Achurubit Lall (1880) 6 C.L.R. 12 : L.R. 6 I.A. 110. The plaintiffs seeking to recover possession may admit the alienation while denying its efficacy to pass any title or interest in the property, which will endure beyond the death of the widow. All that is required (if that be needed) is a declaration that the plaintiff's interest is not affected by the instrument' and that (as has been asked for in this case) the instruments ceased to have effect on the death of the widow--declarations which are merely ancillary to the main relief, which may be granted by delivery of possession. The question whether it is necessary to set aside such a sale may be considered also with reference to the burden of proof. Though particular circumstances may shift the burden of proof, the general rule certainly is that, when a sale by a Hindu widow is questioned, the purchaser is bound to show that the transaction is within her limited powers: The Collector of Masulipatam v. Coraly Veneata Narrainpah (1861) 8 M.I.A. 520, 554, 555. Therefore where the existence of legal necessity is questioned such existence must be shown by the party standing on the conveyance. In ordinary cases then all that a plaintiff will have to do is to prove, unless it be admitted, that the property in suit belonged to the husband of the aliener;. that the allenor is dead; that he is the next heir of that husband, and that the defendant is in possession of the property. In my opinion the plaintiff would ordinarily be then entitled to a decree, unless the defendant proves that the alienation was justified by legal necessity and. so gave him an absolute title. The observations of Tyabji J. in Shrinivas v. Hanmant (1899) I.L.R. 24 Bom. 260, 284, 285. 318 do not in my opinion touch the question now dealt with, as the case cited was one of an adoption. In the case of an alienation by a Hindu widow without necessity the title passed ipso facto ceases upon the death of the widow, unless assented to by the reversioner. In however the case of an alleged invalid adoption it cannot be taken either to have never existed or to have ceased to exist. As held by the Privy Council, the defendant is in possession in the character of an adopted son. The prima jucie title is with him, and, until that is displaced, he ought to retain his possession : Jagadamba Ghaodhrani v. Dakhina Mohan Roy Chaodhri (1886) I.L.R. 13 Calc. 308. On the contrary in the case of an alienation by a conditional owner the prima facie title is ordinarily in the plaintiff as heir of the last full owner, and not in the defendant claiming under the widow, who is only entitled under certain circumstances to give a title which will be good against the reversioner after her death, and which circumstances the defendant standing on the alienation must prove. In my opinion the principles which I have dealt with apply with equal force to all alienations by a Hindu widow, whether by sale, gift, mortgage or lease. They are all equally voidable in this sense that they are good for the widow's lifetime and may be the subject of ratification during her lifetime or upon her death. The sales therefore in this case were in the sense above stated voidable.

26. The question is whether, in the absence of any consent or ratification by the reversioner (and none is alleged here), it is necessary to set aside such alienation within the meaning of Article 91 of the Limitation Act. In my opinion it is not, and that article is not applicable to the present case. I agree with the opinion expressed in the passage cited to us from Mr. U. N. Mittra's learned work on Limitation which is based on the Privy Council decision, Raj Bahadur Sing v. Achumbit Lall (1880) 6 C.L.R. 12 : L.R. 6 I.A. 110: 'Even if such a sale be voidable in the sense that the reversioner may for some reason or other choose to assent to it, it does not follow that the sale (where he has not assented to it) must be set aside within the time allowed by Article 91 before he can recover the possession of the property sold. As the sale can only bind the widow's life interest, the reversioner is entitled after the widow's death to recover notwithstanding the sale.' The principle upon which the decisions in Unni v. Kunchi Amma (1890) I.L.R. 14 Mad. 26, Sheo Shankar Gir v. Earn Sheicak Chmvdhri (1806) I.L.R. 24 Calc. 77, and Narmada DM v. Shoshi Bhusan Bit (1904) 8 C.W.N. 802 proceed is that it is not necessary to set alienations by a conditional owner aside; that in the case of a Hindu widow an alienation only passes the absolute title when justified by necessity, and that in the absence of such necessity and of any ratification of the alienation by the reversioner, as it does not operate to confer any title, which will endure beyond the death of the widow, it is not. necessary on her death to set aside that which on such event has ceased to have any operation at all. At the most a declaration of that fact may be necessary as ancillary to the main relief for possession. I agree with these decisions and with the opinion expressed in the work on the Law of Limitation, which has been cited to us, in which the applicability of Article 91 to such a case as this is questioned--a view which in my opinion is supported not only by the cases to which I have referred, but by the judgment of the Judicial Committee in Raj Bahadur Sing v. Achnmbit Lall (1880) 6 C.L.R. 12 : L.R. 6 I.A. 110, in which, where a putni lease and a will executed by a Hindu widow in favour of the defendant were found to bind her life interest or her own absolute property only, it was held that the instruments in question being innocuous to the plaintiff, who as reversionary heir sued to recover possession of the property left by the widow's husband, it was immaterial to the plaintiff whether the deeds were set aside or not, the plaintiff being in such case entitled to recover notwithstanding those documents.

27. It becomes therefore necessary to see whether the decision of Bijay Gopal Mukerji v. Nil Ratan Mukerji (1903) I.L.R. 30 Calc. 990 is opposed to the view, which I have expressed. It is contended for by the appellants that that case has dissented from the previous decisions in this Court to which I have referred, and that the case of Narmada Debi v. Shoshi Bhusan Bit (1904) 8 C.W.N. 802 is in conflict with it, there being it is urged no distinction in principle between the case of a lease and an out-and-out sale. We have been asked in consequence to refer the matter to a Full Bench. Had the distinction between the two cases been limited to the fact that one dealt with a lease and the other with a sale, I should have felt a difficulty in reconciling them. But on reference to the records as well as to the report of the case, Bijay Gopal Mukerji v. Nil Ratan Mukerji (1903) I.L.R. 30 Calc. 990, it appears that the plaintiffs themselves alleged the following facts, viz., that one A, who was the proprietor of the property in dispute, died, leaving him surviving B, his sole widow; that the latter created an ijara for sixty years in favour of two of the then reversioners, the remaining third reversioner subsequently acquiescing in the ijara and himself taking a dur-ijara. Not merely was the alienation with the consent, but it was in favour of two of the then three reversioners, one of whom was the father of the plaintiffs, who were seeking to set aside the lease. It further appeared from the plaint that the ijaradars, one of whom was, as I have stated, the plaintiff's father, on the basis of the ijara, which his sons were challenging in the suit, granted dur-ijaras in favour of different persons, who again created se-ijaras in favour of others. The defendants pleaded that the reversionary heirs on the date of the ijara being in possession under ijara and dur-ijara settlements with the consent of each other, and having made subordinate settlements and collected the ijara rents and allowed the defendants to pay the revenue, and the plaintiffs on the death of their father having done the same, they were not entitled to set aside the ijara and subordinate settlements as they sought to do, and that in any event the suit was barred by Article 91. It is quite clear that this case--Bijay Gopal Mukerji v. Nil Ratan Mukerji (1903) I.L.R. 30 Calc. 990--was thus very different from the present one, and indeed from the ordinary class of suits brought by reversioners. The plaintiffs on their own showing were bound by the alienations in which their father as the nearest reversioner had acquiesced and of which both he and they had had the benefit, unless they could show ground within the time limited by Article 91 why such alienations should be set aside. The transactions, which they sought to set aside, were as much the acts of their predecessors and themselves as that of the widow, who was one of the original parties to these transactions. There are no doubt some observations in that case which would appear to favour the contention of the appellant, but I must, I think, assume that these were made with reference to the particular facts of that case, and that it was not intended by that decision to lay down the general rule, which has been contended for by the learned pleader for the appellants, that all suits by a reversioner to recover after the death of a Hindu widow property alienated by her are governed by Article 91 and not by Article 141 of the Limitation Act. In the present case there is no allegation by the plaintiff or indeed by the defendant of consent or the existence of any fact which, unless displaced, would make the widow's alienation binding as against him and render it necessary to set such alienation aside. Following therefore the other decisions to which I have referred, I hold, that the suit is not governed by Article 91 of the Limitation Act and that it is not barred.

28. The appeal therefore must be dismissed with costs.


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