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Kishori Pal Vs. Sheikh Bhushai Bhuiya - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in3Ind.Cas.78
AppellantKishori Pal
RespondentSheikh Bhushai Bhuiya
Cases ReferredBijoy Gopal Mukerjee v. Srimati Krishna Mahishi Debi
Excerpt:
hindu law - widow--transfer--absence of legal necessity or consent of reversioners--alienation not void--suit not necessary to nullify such alienation-disaffirmation - .....right which was not transferable.2. in the first court the decree passed was in these terms : the suit is decreed with' costs and interest at 6 per cent, per annum,' and, it is unfortunate that it should be the practice of the courts to pass their decrees and to express their conclusions in these vague and general terms-it is almost a common form for the judge to say that the suit is decreed. it is particularly unfortunate that this formula should be adopted when, as here, there is an alternative prayer in the plaint. in the present case the learned pleader for the respondent; has urged, that what the learned judge intended was a decree for possession of the 8 anna share and we will so treat it. from that decree an. appeal was preferred to the lower appellate court, and it was there.....
Judgment:

1. The prayer in this suit is for recovery of possession of an 8 anna share of the land in suit or for rent according to the prevailing rate : and, the facts out of which this suit a rose may be briefly stated as follows : The plaintiff claims to be the transferee of the landlord's interest in this land by virtue of a transfer executed in his favour in June 1897. Under that transfer he says he became entitled to an 8 anna share in the land in suit, and so claims the relief, I have indicated, alleging that the defendant respondent is a trespasser inasmuch as he claims to be the transferee of an occupancy right which was not transferable.

2. In the first Court the decree passed was in these terms : The suit is decreed with' costs and interest at 6 per cent, per annum,' and, it is unfortunate that it should be the practice of the Courts to pass their decrees and to express their conclusions in these vague and general terms-it is almost a common form for the Judge to say that the suit is decreed. It is particularly unfortunate that this formula should be adopted when, as here, there is an alternative prayer in the plaint. In the present case the learned pleader for the respondent; has urged, that what the learned Judge intended was a decree for possession of the 8 anna share and we will so treat it. From that decree an. appeal was preferred to the lower appellate Court, and it was there held that the plaintiff's title was bad, because the plaintiff claimed as purchaser from a widow and it was not shown that there was either legal necessity or the reversioner's consent. The result was that the lower appellate Court dismissed the suit with costs. Then there was an appeal to the High Court, and the case came before Mr. Justice Brett sitting alone, who reversed the decree of the lower appellate Court and restored the decree of the Munsif. From this judgment of Mr. Justice Brett this appeal is preferred before us.

3. Though there are many interesting points that might arise out of the circumstances of this case, as a matter of fact we are only concerned with one point, and that is whether or not the plaintiff acquired a good title as against the defendant-respondent. The determination of. this question turns upon whether or not the transfer by the widow to the plaintiff was void or not For the purpose of determining that, we must accept the findings of the lower appellate Court, that is to say, we must take it as established that there was no legal necessity and that there was no consent of the reversioners. On that basis, it was urged before us that the transfer by the widow was void. Now, obviously it could not have been void ab initio it must have operated during the widow's life. But the widow has since died and can it be said that it became void on her death? In support of the proposition that it become void, we have been referred to a decision of the Privy Council in Bhagwat Dayal Singh v. Debi Dayal Sahu 35 C. 420 : l2 C.W.N. 393 : 10 Bom. L.R. 230 : 7 C.L.J. 335 : 5 A.L.J. 184 : 18 M.L.J. 100 : 3 M.L.T. 344 : 14 Bur. L.R. 49. No doubt the head-note lends some colour to the argument, but its author did not do justice to the actual words of their Lordships, and there is nothing in. that case that would entitle us to say that their Lordships there held that in circumstances like the present the transfer would become void by the mere fact of the widow's death. Now, how do the authorities stand? It seems to me that the matter is placed beyond doubt by what was decided and said in Bijoy Gopal Mukerjee v. Srimati Krishna Mahishi Debi 34 I.A. 87 : 34 C. 329 : 9 Bom. L.R. 602 : 11 C.W.N. 424 : 5 C.L.J. 334 : 2 M.l.T. 133 : 17 M.L.J. 154 : 4 A.L.J. 329. It was there pointed out that an alienation by a widow, even though there may not be legal necessity or consent, was not void and could not be regarded as void, because it is the established law that such transfer was capable of affirmation after the death of the widow, and that which is capable of affirmation cannot possibly be void, If. not void, it is clear that the transfer even after the death of the widow had a qualified operation. It is quite true that to nullify such a transfer a suit is not necessary; disaffirmation would be sufficient. But as the transaction is capable of disaffirmation so it is also capable of affirmation and, while there is nothing decisive one way or the other, it seems to me that we cannot say that the transfer even after the death of the widow is incapable of operation as against a third party in the position of the defendant respondent on this appeal.

4. I, therefore, agree with the conclusion at which Mr. Justice Brett has arrived, and as this is the only point before us on this appeal we hold that he was right in restoring the decree of the Munsif, which must be treated as a decree for joint possession of an 8 anna share and not a decree for rent.

5. This appeal, therefore, must be dismissed with costs.


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