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Koer Sarabjit Pratap Bahadur Sahi Vs. Musammat Bhagwat Koeri and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in30Ind.Cas.578
AppellantKoer Sarabjit Pratap Bahadur Sahi
RespondentMusammat Bhagwat Koeri and ors.
Cases ReferredDebi Prosad Chowdhury v. Qolap Bhagat
hindu law - woman, estate of--possession, suit for recovery of, by reversioner--alienation, effect of--reversioner, relenquishment in favour of--limitation. act (ix of 1908), schedule 1, article 120--declaration, of right--period from which, right, to sue accrues--waste, what constitutes--reversioner, when. - .....sued to recover possession of certain properties as heir of his maternal grandfather, sri kishun singh. the genealogical table attached to the plaint shows the relationship between the parties. sri kishun singh died on 29th july 1872 leaving a widow. kamalbas koeri, and two daughters, ram kawal koeri, defendant no. 3, and raj kishori koeri, defendant no. 4. the plaintiff is one of the sons of ram kawal koeri. his elder brother, raja shatrujit protap bahadur sahi, died on 5th october 1898. kamalbas koeri, the grandmother of the plaintiff, died on 9th september 1899. raj kishori koeri had one son, ram narayan singh, who died on 12th december 1910. the plaintiff's suit was filed on 2nd september 1911. during the pendency of the suit, namely, on 25th january 1913, the plaintiff's.....

1. This is an appeal by the plaintiff, Sarabjit Pratap Bahadur Shai, from a decree of the Subordinate Judge of Saran dismissing his suit. The plaintiff sued to recover possession of certain properties as heir of his maternal grandfather, Sri Kishun Singh. The genealogical table attached to the plaint shows the relationship between the parties. Sri Kishun Singh died on 29th July 1872 leaving a widow. Kamalbas Koeri, and two daughters, Ram Kawal Koeri, defendant No. 3, and Raj Kishori Koeri, defendant No. 4. The plaintiff is one of the sons of Ram Kawal Koeri. His elder brother, Raja Shatrujit Protap Bahadur Sahi, died on 5th October 1898. Kamalbas Koeri, the grandmother of the plaintiff, died on 9th September 1899. Raj Kishori Koeri had one son, Ram Narayan Singh, who died on 12th December 1910. The plaintiff's suit was filed on 2nd September 1911. During the pendency of the suit, namely, on 25th January 1913, the plaintiff's mother, defendant No. 3, died. The parties defendant are No. 1 Bhagwat Koeri, the widow of Mahabir Prosad Singh, No. 2 Babu Ragheswar lnder Sahi, minor son of Babu Harihar Inder Sahi, and defendants Nos. 3 and 4 mother and aunt of the plaintiff.

2. The case was argued and decided in the Court of first instance on what may be called a demurrer,' that is to say, the learned Subordinate Judge, assuming all the facts alleged by the plaintiff to be correct, decided that the plaintiff's present suit could not succeed. The defendants had put in written statements traversing many of the allegations of fact made in the plaint. It will be unnecessary to go into these questions of fact if the learned Subordinate Judge's decision is correct. The case has been argued in this Court on the same footing.

3. The claim of the plaintiff as shown by the prayer of his plaint was as follows: (a) That it be declared that Babu Sri Kishun Singh died while separate from his brothers, Bachu Singh ar.d Jugal Kishore Singh, and that the plaintiff is the heir of the said Babu Sri Kishun Singh. (b) That it be declared that, after the death of Kamalbas Koeri, plaintiff as heir of Babu Sri Kishun Singh is entitled to possession of the disputed properties which appertain to his estate on the ground stated in the plaint, and the possession of the defendants as deriyed from Babu Bachu Singh and Babu Mababir Prosad Singh who had no title thereto be declared wrongful and without title, (e) That it be declared that the alienations mentioned in paragraphs 38, 39 and 40 of this plaint are invalid in so far as they relate to the estate of Babu Sri Kishun Singh and are of no binding effect on the plaintiff, (d) That is decree for recovery of possession of the disputed properties mentioned in Schedule IVA by ousting the defendants be passed in favour of the plaintiff and the plaintiff be put in possession thereof, (e) That in case the Court be pleased to hold that the plaintiff is not entitled to immediate possession of the properties in suit as absolute owner thereof, the sale may 'be reduced into proper possession and the plaintiff be placed in charge of the same as manager during the life-times of the defendants Nos. 3 and 4 and a declaration of plaintiff's right to possession as an absolute owner from such date as under the circumstances of the case the Court thinks proper be made in favour of the plaintiff. (f) That leave may be granted to the plaintiff to join the claim for Rs. 45,000 with the claim for the rest of the estate of Babu Sri Kishun Singh and a decree for the said Rs. 45,000, representing the price of kothis Bunwar and Basoila mentioned in paragraph 26 of the plaint appertaining to the estate of Babu Sri Kishun Singh and appropriated by the husband of the defendant No. 1, together with interest t as detailed in schedule VI be passed against the defendant No. 1 to be realised from the estate of the defendant No. 1's husband, (g) That a decree for Rs. 1,05,494-5-3, being the mesne profits of the disputed properties for three years prior to the institution of the suit as detailed in Schedule VII, and also for the future mesne profits from the date of suit till delivery of possession be passed in favour of the plaintiff against defendants Nos. 1 and 2. (h) That the costs of the suit with interest be awarded to the plaintiff, (i) That such other appropriate reliefs be granted to the plaintiff to which he, under the circumstances of the case, is entitled to obtain in law and equity.

4. That is in effect a suit for possession on declaration of the plaintiff's title with an additional prayer that, if the plaintiff be not entitled to immediate, possession of the property in suit as the absolute owner thereof, he (the plaintiff) should be given possession as manager during the life-time of defendants Nos. 3 and 4. The case of the plaintiff resolves itself into three claims, first, a claim for immediate possession; secondly, if he cannot get that, a claim for declaratory relief; and thirdly, a claim to be put in possession as manager during the life-time of defendants Nos. 3 and 4.

5. Now, it is not disputed by the appellant that, under ordinary circumstances, his maternal grandfather's estate would not fall into his possession until the deaths, first, of his grandmother, Kamalbas Koeri, and secondly, of the daughters of Sri Kishun, namely, defendants Nos. 3 and 4. The plaintiff's suit was brought on 2nd September 1911, about a week before the twelve years from the death of Kamalbas Koeri expired. He was thus, so far as that lady is concerned, just within time in his suit for possession. But he could not hope or expect to get possession during the lifetime of his mother and aunt who would take the estate before him as the daughters of Sri Kishun Singh. It would be, therefore, necessary for him to show that the estates of these ladies had expired by their deaths or in some other way. They were both alive at the date of the institution of the suit.

6. The plaintiff, however, alleges that by certain ekramamas, dated 9th July 1873, these ladies relinquished their estates in favour of Bachu Singh a brother of Sri Kishun Singh and father-in-law of defendant No. 1. In point of fact the plaintiff alleges, and this is not disputed, that there were three ekramamas executed on 9th July 1873, one in respect of the estate of Kamalbas Koeri, one in respect of the estate of Ram Kawal Koeri and the third in respect of the estate of Raj Kishori Koeri. The plaintiff glosses over the fact that, if the ekramamas of defendants Nos. 3 and 4 operated as a relinquishment of their estates, the ekramama of his grandmother, Kamalbas Koeri, would have the same effect. However that may be, the allegation is that the execution of those ekramamas was procured by Babu Baehu Singh with a view to create evidence of his jointness with his brother, Sri Kishun Singh, and to prevent these defendants from asserting a claim as heirs of their father, Sri Kishun Singh. The question whether, Sri Kishun Singh was joint with his brothers, Bachu Singh and Jugal Kishore Singh, at the time of his death is a question of fact which would arise in the suit. We may, however, assume for the purposes of the present argument that Sri Kishun was separate from his brothers. Those eTcrar-namas were executed about a year after the death of Sri Kishun Singh. The plaintiff alleges that by those ekraruamas, defendants Nos. 3 and 4 relinquished their heritable right and in consequence, accelerated the succession of the plaintiff to the estate of his maternal grandfather. Now, in point of law, this is wholly incorrect. The estate of a Hindu widow or, as in this case, of a daughter might be determined in various ways; but as these ekrarnams are set out in the plaint, they clearly do not amount to more than an alienation in favour of Bachu Singh. Now an alienation in favour of a third party clearly does not have the effect of accelerating the estate and entitling the next reversioner to immediate possession. The learned Pleader for the appellant in his reply referred us to certain remarks made by the learned Judges in the case of Debi Prosad Chowdhury v. Qolap Bhagat 19 Ind. Cas. 273 : 40 C. 721 : 17 C.W.N. 701 : 17 C.L.J. 499. He argued that there had been a disclaimer at the death of Sri Kishun which would put an end to the estates of these ladies. The plaintiff, however, does not allege any such disclaimer in his plaint; on the contrary, he says that these ladies, well knowing that they has the right of inheritance to their father's estate, gave it up by these ekramamas a year after their father's death in consideration of certain villages granted to them by Bachu Singh in lieu of maintenance. There has been no relinquishment in favour of the reversioner in this case; nor is any such relinquishment alleged which would accelerate the estate in favour of the plaintiff as such reversioner. It follows, therefore, that during the life-time of his mother and aunt, the plaintiff could not successfully maintain a suit for immediate possession of the properties left by his grandfather Sri, Kishun Singh. His mother died pending the present appeal; but his aunt, the defendant No. 4, is still alive and her estate stands in the way of his immediate inheritance.

7. In the Court below, the learned Pleader for the plaintiff saw the difficulty in which he was placed and endeavoured on the principle, as Sir Rash Behari has put it, that half a loaf is better than no bread,' to obtain from the Court a declaration of the plaintiff's right as such reversioner in anticipation of the deaths of his mother and aunt, the defendants Nos. 3 and 4. As above stated, the suit is not, strictly speaking, brought for such a declaratory relief. Assuming, however, that it might be granted on the plaintiff's present prayer and that it would be proper to grant it, the question arises whether the claim in that respect can be said to be in time. In our opinion, it is clearly barred by limitation. The claim to such a declaration would be governed by Article 120 of the first Schedule to the Limitation Act. The time from which the period of limitation begins to run is from when the right to sue accrues. Now, these alienations or acts of the ladies which gave the plaintiff a cause of action took place as long ago as 1873. The plaintiff was then a minor; but, assuming that a certificated guardian was appointed and his minority would extend until he was 21 years of age, as the learned Subordinate Judge points out, he would have attained majority sometime in 1889. Allowing three years from that date, the suit would have had to be brought by 1892. It is thus hopelessly out of time. Even if the time were to run from Kamalbas Koeri's death, the suit would be long out of time as she died in 1899 and the suit was not brought until 1911. That disposes of the second point.

8. As in the Court below the plaintiff fell back upon the right to a declaratory relief on failure of his claim for immediate possession, so here an attempt was made to save the plaintiff's suit by arguing that the question of his appointment as manager should be gone into. Nothing appears to have been said in the Court below with regard to this paragraph of the plaintiff's claim. It seems to have been raised here for the first time. On the allegations of the plaintiff as contained in paragraph 34 of his plaint, it is clear that the relinquishment by defendants Nos. 3 and 4 of their right of inheritance to their father's estate would not amount to waste of the estate of Sri Kishun Singh, which would justify the Court in considering whether the estate should be taken out of their hands. A Hindu lady in that position has an absolute right and full power to alienate the estate for the period of her enjoyment to ail outsier. That will not give the reversioner the right to come in and plead waste, and insist on the estate being brought into possession by the Court. There are no allegations in the plaint which point to anything like spoliation of the estate or indicate that the estate has, in any way, suffered or will, in any way, suffer from its being held by defendant No. 1, who is said to be in possession claiming under defendants Nos. 3 and 4. There is, therefore, no possible advantage to be gained by prolonging this litigation and opening up an inquiry which, on the allegations contained in the plaint, must necessarily prove infructuous. This is not one of that class of cases referred to by the learned Pleader for the appellant in his reply in which the denial of her own and the reversioner's title by a Hindu widow may give the reversioner an immediate cause of action, because it is necessary that he should, at the earliest stage, be allowed to support that title by adducing evidence and getting an adjudication of the Court upon it. We are of opinion that the learned Subordinate Judge was right in the course that he took and in the conclusion to which he came.

9. It was suggested here that the case ought not to have been argued on the preliminary issue without all the issues, both of fact and of law, in the suit having been properly framed. It appears, however, that the course which was adopted was adopted by consent of both the parties and that Pleaders on both sides were taken from Calcutta before the Subordinate Judge to argue the case on these lines. There would have been no possible advantage is framing a number of issues which, in the view that the Subordinate Judge took of the case, would not have to be considered.

10. Agreeing, therefore, with the Court below, we dismiss the appeal with costs, two sets, to defendant No. 1 and defendant No. 4.

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