Baldeo Das vs Raghunandan Das and Others

Mohamad Noor, J.—This is an appeal against a decree of a Subordinate Judge of Patna declaring that a certain deed of sale in respect of some of the properties of one Gopal Lal executed on behalf of his daughter is not binding after the death of the lady upon the plaintiffs who are his reversioners. The facts are shortly these: One Gopal Lal was the adopted son of one Ras Bihari Lal who died leaving by his will all his properties to Gopal Lal subject to the payments of certain annuities to his daughter and to the son of a deceased daughter. By the same will Ras Bihari Lal appointed his second wife Narayani Bibi to be the guardian of Gopal Lal during his minority. When Gopal Lal attained majority there was a litigation between him and Narayani Bibi. The latter disputed that Gopal Lal was an adopted son of Ras Bihari Lal and also questioned the genuineness of the will. Ultimately there was a compromise whereby the status of Gopal Lal as the adopted son of Ras Bihari Lal was accepted by Narayani Bibi and in return Gopal Lal gave her a life mokarrari of three properties at an annual rent of Rs. 3,350. Out of the rent Rs. 3,000 was to be set-off towards the maintenance of Narayani Bibi at the rate of Rs. 250 per month and the balance, d.e. Rs. 350 was payable to Gopal Lal; Narayani Bibi was made liable for the payment of the Government dues. On the death of Narayani Bibi the properties were to revert to Gopal Lal. These properties were (1) Pindadih alias Brindaban, (2) Kanda Bhadaya, and (3) a house consisting of four kitas situated at Patna. The last two properties are the subject matter of the present litigation.

Gopal Lal died highly indebted, leaving a widow Gulab Kuar and an infant daughter, Raj Mani Bibi (defendant 16). He had in his lifetime made a gift of some of his properties to his wife Gulab Kuar. The parties in the suit are at variance as to who inherited the remaining properties of Gopal Lal. According to the plaintiffs Gulab Kuar succeeded to them as a Hindu widow. The defendants'' case, on the other hand, is that she declined to take anything in the estate of her husband and surrendered it in favour of her infant daughter, Raj Mani. The significance of this controversy will be stated later. Whatever may have been the real state of affairs, it is a fact that one Srikishun maternal grandfather of Raj Mani i.e. father of Gulab Kuar, having got himself appointed the guardian of Raj Mani executed on her behalf several deeds of sale in respect of the properties of Gopal Lal purporting to do so in order to pay up his debts. One such deed of sale, dated 9th July 1885, is in dispute in the present suit.

This was in favour of Narayani Bibi in respect of two out of the three properties of which a life mokarrari was given to her by Gopal Lal, these two properties being Kanda Bhadaya and the house at Patna. The sale was of the right of reversion which was vested in Gopal Lal and his heirs. The effect of the sale was that Narayani Bibi became the full owner of these properties instead of being only a life mokarraridar. Later on Narayani Bibi sold Kanda Bhadaya to certain other person. On her death her properties came in possession of Baldeo Das (defendant 15) under her will. The present suit was by the sons of Raj Mani, being the maternal grandsons of Gopal Lal. Their case was that the sale by Srikishun Das was illegal and void, that Gulab Kuar did not surrender her life estate in favour of Raj Mani and that Raj Mani had no right to transfer these properties. They further alleged that both Gulab Kuar and Raj Mani surrendered their respective life estates in the properties of Gopal Lal and thus accelerated the succession of the plaintiffs to the said estate which became vested in them. On this basis they sought the recovery of possession of the two properties, viz. Kanda Bhadaya and the Patna house. Pindadih was sold by Srikishun on behalf of Raj Mani to some other persons who having been dispossessed by the plaintiffs brought a suit for recovery of possession. That suit ended in a compromise and we are not concerned with that property in the present suit which is confined to, as I have said, Kanda Bhadaya and the Patna house. During the pendency of the suit the defendants who were concerned with Kanda Bhadaya, having purchased it from Narayani Bibi, compromised with the plaintiffs. The suit therefore continued in respect of the house only which was claimed by defendant 15 (the appellant) under the will of Narayani Bibi. In the first instance the suit against defendant 15 Was decreed ex parte. He was not allowed to file a written statement as he was out of time and was not allowed to cross-examine the plaintiffs'' witnesses.

On appeal to this Court (F.A. No. 173 of 1926) the suit was ordered to be reheard. This was done and the learned Subordinate Judge has found that Gulab Kuar did not in fact surrender her husband''s estate in favour of Raj Mani and therefore Raj Mani had no right to sell the properties in question, that the sale deed by Srikishun Das, as guardian of Raj Mani, in favour of Narayani Bibi, was void and illegal, and that in fact Narayani Bibi paid no consideration; and further, that the sale was in contravention of an order of the District Judge who had directed that the creditors should be paid in the presence of the Court and this was not done. He, however, found that the plaintiffs'' case that Gulab Kuar and Raj Mani Kuar surrendered their respective life-estates in the estate of Gopal Lal, was not established and, therefore, the plaintiffs were not entitled to immediate possession of the properties. On these findings, though he refused to give the plaintiffs a decree for possession, he declared the sale in question to be not binding upon them on the death of Raj Mani. It seems that the learned Sub-ordinate Judge has allowed the sale to stand during the lifetime of Raj Mani on the ground that she, not having questioned it, was bound by it, but the plaintiffs who claimed independently of her, are not Defendant 15 has preferred this appeal.

In my opinion the appeal must succeed, as on the findings of the learned Subordinate Judge the plaintiffs were not entitled to a declaration as their right to get such a declaration was barred under Article 125; Limitation Act. The question of limitation was raised before the learned Subordinate Judge who decided it in favour of the plaintiffs. He is obviously in error. A reversioner who wants to challenge alienations by a limited female owner has got two courses open to him. He may during the lifetime of the female institute a suit for a declaration that the alienation is void as against him. Such a suit is governed by Article 125, Limitation Act, and must be instituted within twelve years of the date of the alienation. He may, if he likes, wait till the female is dead and thereafter sue for recovery of possession of the property by avoiding the sale. Such a suit is governed by Article 141, Limitation Act, and must be instituted within twelve years from the date of the death of the females Now the learned Subordinate Judge has rightly said that a reversioner is not bound to bring a declaratory suit during the lifetime of the female. It is so; but if he chooses to bring such a suit it must be within twelve years of the date of the alienation. If no such suit is brought within that period it becomes barred by limitation. The present suit as framed was for recovery of possession and on the face of it was not barred by limitation. It was based on the ground that in consequence of the surrender of the life-estates by Gulab Kuar and Raj Mani Kuar the plaintiffs were entitled to immediate possession. This issue having been decided against the plaintiffs the learned Subordinate Judge was wrong in decreeing a relief of declaration which was barred by limitation. The sale was in 1885 and the suit was instituted in 1924. The plaintiffs themselves did not ask for a declaration as they knew that such a claim was obviously barred. There was, however, a cross-objection by the plaintiffs against the dismissal of their claim for possession. But Mr. Khurshaid Husnain, who appeared on behalf of the plaintiffs, intimated to us that he would not press it. The finding that the plaintiffs were not entitled to possession must therefore stand and on the face of it they are not entitled to a declaration in the present suit, as the relief for declaration was barred by limitation. In view of this it is not necessary for me to give any finding on the other issues involved in the suit. They are left open and will be decided in any subsequent suit which the plaintiffs or any other next reversioner of Gopal Lal may choose to institute for possession of the property on the death of Raj Mani.

The appeal is therefore allowed and the plaintiffs'' suit in respect of the Patna house described in Schedule B of the plaint is dismissed against defendant 15, the appellant. Parties will bear their own costs in the Court below as ordered by the learned Subordinate Judge. As to costs of this Court, the plaintiffs will pay the defendants the amount of the court-fee paid by them and half of the printing costs of the paper-book; hearing fee will be borne by the parties themselves.

Varma, J.

I agree.