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Kuldip Sing and anr. Vs. Khetrani Koer and - Court Judgment

LegalCrystal Citation
SubjectContract
CourtKolkata
Decided On
Judge
Reported in(1898)ILR25Cal869
AppellantKuldip Sing and anr.
RespondentKhetrani Koer and ;l. Macdonald and anr.
Excerpt:
contract - hindu widow--reversioners--settlement of dispute--ikrarnamah--condition in restraint of lease--transfer of property act (iv of 1882), sections 10 and 15. - .....the case is a simple one.3. it is alleged in the plaint that there were three persons, kuldip singh, pardip singh and udit narain singh, who formed a joint hindu family. udit narain singh was a first cousin once removed of the others. on udit narain's death his interest passed to kuldip singh and pardip singh. as a matter of fact, udit left a widow by name khetrani koer, disputes arose between the plaintiffs, kuldip and pardip and khetrani koer, and those disputes were settled by an ikrarnamah. the ikrarnamah gives the lady possession for her life on account of her maintenance of her husband's share of the property, and there is a provision in it which has given rise to the present question. that provision is this: 'if i (that is khetrani koer) take and execute any sort of document.....
Judgment:

Trevelyan and Steyens, JJ.

1. In this case we regret that we are unable to agree with the learned Subordinate Judge in the view he has taken.

2. The case is a simple one.

3. It is alleged in the plaint that there were three persons, Kuldip Singh, Pardip Singh and Udit Narain Singh, who formed a joint Hindu family. Udit Narain Singh was a first cousin once removed of the others. On Udit Narain's death his interest passed to Kuldip Singh and Pardip Singh. As a matter of fact, Udit left a widow by name Khetrani Koer, Disputes arose between the plaintiffs, Kuldip and Pardip and Khetrani Koer, and those disputes were settled by an ikrarnamah. The ikrarnamah gives the lady possession for her life on account of her maintenance of her husband's share of the property, and there is a provision in it which has given rise to the present question. That provision is this: 'If I (that is Khetrani Koer) take and execute any sort of document then it will be null and void. And be it known that if any party out of the two parties be under the necessity of executing a simple pattah, zarpeshgi pattah, mokarari and kashtkari, jointly or individually, then it would be executed and delivered by mutual consultation of both the parties, and if it be signed by both the parties, then it would be valid and trustworthy, and the document not signed and consented to by both parties shall be null and void.' The lady executed a lease for eleven years in favour of the proprietors of the Dooria Indigo Concern. The plaintiffs claim that the execution of that lease is a breach of this covenant, and that they are entitled to a declaration to that effect and to have the lease set aside. There were other questions raised, which have not been determined.

4. The learned Subordinate Judge has held that this covenant is invalid and has no operation. He has therefore dismissed the suit.

5. We are unable to follow the reasoning upon which he comes to that conclusion. Admittedly there is nothing in any statute law which renders such a provision inoperative. Sections 10 and 15 of the Transfer of Property Act have no application here; and we are unable to see any principle underlying those Sections which can be applied to the present case, or that there was any sort of absence of equity in an arrangement of this kind. This was a settlement of a dispute, and effect should be given, as far as possible, to every portion of it. It is not at all an unreasonable provision that reversioners giving up their claim and allowing a Hindu widow to remain in possession of their property should wish to retain supervision over it and to prevent any acts on her part which might cause injury to their reversionary rights. A provision of this kind is not only not contrary to law, but is one which might reasonably be made in common prudence by reversioners. There being admittedly nothing in law to show that this covenant is illegal, effect must be given to it.

6. This does not dispose of the case. There are other questions. The case must, therefore, go back to the Subordinate Judge to have those questions determined, the decree of the lower Court being set aside. The respondents who appeared must pay the costs of the appeal.

7. The Court-fee on the Memorandum of Appeal will be refunded to the appellant under Section 13 of the Court Pees Act.


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