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Shaikh Rafic Vs. Bhagaban Chandar Dhar - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1915Cal170(2),25Ind.Cas.377
AppellantShaikh Rafic
RespondentBhagaban Chandar Dhar
Cases ReferredJoyram Loot v. Pani Ram Dhoba
Excerpt:
registration act (xvi of 1908), section 17 - compromise--registration--matter extraneous to litigation--hindu, widow, right of, to compromise--legal necessity--surrender of right, to one reversioner--right of other reversioners. - .....in 1873 making parties to it not only hamidulla and furkhan but others including joy tara and madhu sudan. this suit is alleged to have been settled by the compromise under which the 6-annas said to have been purchased by hamidulla and furkhan were confirmed to them and they, on the other hand, gave up their claim in respect of the ijara extending over the 10-annas interest to joy tara who subsequently conveyed her interest in the 10-annas to madhu-sudan whose name appears on the pedigree table.6. on this it has been argued that the effect of that compromise was to vest the 10-annas interest in madhu sudan through whom the defendants claim. there are, however at least three objections to the argument which is based upon this alleged compromise in the first place, there is this.....
Judgment:

Woodroffe, J.

1. The plaintiff in the suit claims as reversioner after the death of Joy Tara, widow of one Ganga Prosad Dhar, and the defendants claim under certain conveyances said to have been executed during her life-time. The plaintiff's claim has been decreed by both the lower Courts and it is the defendant who now appeals. We have heard this appeal at great length for the greater part of the day with the result that, in my opinion, that decision which has been arrived at by both the lower Courts is the correct one.

2. The decision of the Subordinate Judge has been attacked upon two grounds, first, that of limitation, it being contended that the defendants as the purchasers-in-interest had been in adverse possession for more than 50 years and that thereby they acquired a title which was not defeasible by the plaintiff. The lower Appellate Court has held that the title' of Joy Tara and of the reversioner was not extinguished by limitation and this finding has been impugned as erroneous in law The way in which this point is sought to be made out is this.' The learned Judge has stated that Act IX of 1871 came into operation on the 1st July 1871 and if that be so, then it is conceded that there is nothing in the point which the appellant raises before us. But it is contended that the learned Judge is wrong in holding that the Act came into operation on the 1st July 1871 and that, upon a proper construction of the Act, it should be held that it came into operation on the 1st day of April 1873.

3. Now, in the first place, it is to be observed that even if this argument were correct, it will only affect the first of the conveyances to which I have referred; for, according to the facts recited, after the suit of 1854 the reversioners alleging that they were in possession are said to have sold 2-annas to Hamidullah or Furkhan on the 12th January 1860 and 4-annas are said to be sold by the same persons to the same parties on the 18th December 1863, and it was after this date that the remaining 10-annas were granted out to these persons in ijara. Even if the Act be held to have come into force on the 1st April 1873, 12 years had not elapsed at that time from the date of the second and third of the conveyances to which I have referred.

4. It is not necessary, however, to decide in this case whether the construction upon this Act by the learned Pleader for the appellant is correct or whether, as the learned Pleader for the respondent contends, that the Act by its plain terms provides that it shall come into force on the 1st day of July 1871 but shall not apply to suits instituted before the 1st April 1873, it being pointed out in connection with this argument that there was in fact no such suit. The learned Pleader for the appellant relies on the case of Drobomoyi Gupta v. C.T. Davis 14 C. 323 at p. 344. On the other hand, reference is made to the decision in Joyram Loot v. Pani Ram Dhoba 8 C.L.R. 54 which held that the proviso which I have mentioned refers only to suits actually instituted on the 1st April 1873. It is not necessary to consider this point because it can only arise if, as a matter of fact, possession was had under these documents and as regards that, we have the finding of fact of the lower Appellate Court that there is not sufficient evidence to enable it to hold that after execution the purchaser had possession of the purchased property. This disposes, therefore, of the question of limitation.

5. The second point is one which is raised with reference to a compromise passed in Suit No. 419 of 1873. The facts relating to this compromise are shortly these. Notwithstanding the sale and ijara to Hamidulla and Furkhan Ali which I have mentioned, Joy Tara executed an ijara to another party who, it is said, having failed to obtain possession brought a suit for recovery of possession in 1873 making parties to it not only Hamidulla and Furkhan but others including Joy Tara and Madhu Sudan. This suit is alleged to have been settled by the compromise under which the 6-annas said to have been purchased by Hamidulla and Furkhan were confirmed to them and they, on the other hand, gave up their claim in respect of the ijara extending over the 10-annas interest to Joy Tara who subsequently conveyed her interest in the 10-annas to Madhu-Sudan whose name appears on the pedigree table.

6. On this it has been argued that the effect of that compromise was to vest the 10-annas interest in Madhu Sudan through whom the defendants claim. There are, however at least three objections to the argument which is based upon this alleged compromise In the first place, there is this difficulty that it cannot be put in evidence at all in so far as it is a compromise of a matter which is not the subject of that suit. That suit was concerned with the question of the ijara the point in issue being whether or not the party who took from Joy Tara was or was not entitled to possession. It may be that the petition of compromise, in so far as it relates to property in suit, does not require registration; but in so far as the settlement touches property extraneous to litigation, registration is necessary and the learned Judge has so held. But even if we could look at the document and there were no such technical objections available to the respondent; there are two others which are equally fatal In the first place, it was not open to the widow to enter into a compromise so as to affect anything but her life-interest unless it could be shown that the compromise was for the purpose of legal necessity. As regards this, there is no finding that it was so and indeed the judgment of the first Court which is affirmed by the Court of Appeal below appears to hold that there is no evidence of legal necessity Then, there is this further objection which the Subordinate Judge has pointed out that there is nothing to show and the Munsif points out that from the oath of the plaintiff and the decree, Exhibits E and F it appears that there were two mother's sister s sons of Madhu Sudan Dutt alive at the date of the alleged surrender Which was, as I have said, made only in Madha Sudan Dutt. Therefore, on that ground also the surrender could not operate as creating an absolute right in favour of Madhu Sudan and his transferees as against the plaintiff who was the reversioner at the date of the death of Joy Tara.

7. In these circumstances, both the grounds on which the judgment of the lower Court has been attacked having failed, the appeal must be dismissed with costs.

Carnduff, J.

8. I agree.


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