Bipat Mahton vs Kulpat Mahton and Others

Dhavle, J.—This is an appeal by the plaintiff in a suit concerning 37 bighas of land once held by Tulsi Bhagat in mauza Sarouni Kalan. On the death of Tulsi in Baisakh, 1326, his widow Mt. Chando came into possession of the land; and she sold it to the plaintiff by a registered kabala executed in the following October. In 1924, there was a dispute regarding the possession of the land, which led to proceedings u/s 145, Or. P. C, before the Magistrate. There were three parties in these proceedings: (1) Bipat, the plaintiff in the present suit who relied on the sale-deed from Mt. Chando; (2) Kankal Mahton, defendant 1, who claimed as an adopted son of Tulsi: and (3) Jageshwar Mahton, defendant 2, who claimed 5 bighas out of the disputed land under a deed of sale from Tulsi. The Magistrate was unable, on the evidence produced before him, to satisfy himself as to which of the parties was then in possession of the land, and therefore attached it u/s 146, Criminal P.C.

This was in June 1924, and the present suit was brought in the following April by Bipat, basing his claim on the sale-deed from Mt. Chando and asking for a declaration of his title on the footing that Mt. Chando had sold the land to him "for satisfaction of the dues of her husband and legal debts." Kankal, defendant 1, though impleaded as a major appeared to be a minor, and a written statement was put in on his behalf by his father, Kulpat Mahton, alleging that the suit was collusive and fraudulent, that the widow had no right to sell the property and that Kankal would be greatly prejudiced if the case was allowed to go on without deciding in the first place "with whom the title to these lands goes and continues."

A reference was made in Kankal''s written statement to a written statement that had been previously filed by Kulpat Mahton. alleging that he was Tulsi''s father''s brother''s son and joint with him, that Mt. Chando, who had been married by Tulsi "in chumawan form" after the death of his first wife, had been turned out of the house by Tulsi, and had then married Jageshwar (before Tulsi''s death), and that the sale deed obtained by Bipat from Mt. Chando was

a nominal, baseless, illegal and wrongful deed of sale.... without any consideration and without any right and possession.

The trial Court added Kulpat as a defendant, overruling the objection of the plaintiff who had himself travelled beyond the parties to the proceedings u/s 145, Criminal P.C., by impleading Jageshwar''s brother Kodhil as defendant 3. As to Jageshwar and Kodhil, the plaintiff''s case was that they were merely farzidars of Tulsi; and this was upheld by the trial Court and need not be further considered.

As regards plaintiff''s own title, the learned Subordinate Judge came to the conclusion that Kulpat was not a cousin of Tulsi, that even if he were a cousin, he was not joint with Tulsi at the time of the death of the latter, that Chando was married to Jagdeo not in the lifetime of Tulsi, but after his death, and that her kabala was "not a collusive document and was executed for consideration." He also considered that Kulpat had no locus standi to question the validity of the sale by Chando to the plaintiff and therefore upheld the sale without going into the question whether it was supported by legal necessity.

The suit was decreed, and Kulpat and Kankal appealed. The learned Additional District Judge who heard the appeal found that the evidence adduced by the plaintiff to prove the execution of the kabala by Mt. Chando was quite satisfactory. He was however of opinion thai; on the pleadings in the case it was incumbent on the plaintiff,

who wants to enforce a certain conveyance made in his favour by a Hindu widow,

to state and prove that the sale by the widow was justified by legal necessity. His conclusion was as follows:

* * * * though the kabala was executed by Musammat, plaintiff failed to prove either the passing of the full consideration money thereof or the existence of the legal necessity for the same, so that in view of the principles of law laid down by the Privy Council in the cases quoted above the plaintiff failed to discharge the burden which lay on him to prove his title under the conveyance from the widow who has only limited interest in the properties of her husband. The kabala therefore is not valid in the eye of the law so as to make the title of the plaintiff complete in respect of the property conveyed to him under it. The widow having remarried, her life interest too has come to an end. Consequently the kabala cannot be validated till she lives.

In this view the learned Judge held that the plaintiff was "not entitled to the declaration prayed for by him." The appeal was therefore allowed and the suit dismissed. It has been urged on behalf of the plaintiff, who has now appealed to this Court, that even on the findings of fact of the lower appellate Court that legal necessity for the sale and the passing of full consideration has not been established, Mt. Chando''s sale-deed in favour of the plaintiff was not ipso facto void, but was only voidable at the instance of Tulsi''s reversioners and that the plaintiff was therefore entitled to a decree. Referring to the observation of their Lordships of the Judicial Committee in Collector of Masulipatam v. Cavaly Veneata Narainapah (1861) 8 MIA 529 at p. 553, that the restrictions on a Hindu widow''s power of alienation are "inseparable from her estate," the learned Judge apparently considered "that even if there be no reversioners, she cannot alienate the corpus of the property except for a legal necessity."

He has also cited Bhagwat Dayal Singh v. Debi Dayal Sahu (1908) 35 Cal 420, for the proposition that

an alienee who claims title under a conveyance from a Hindu widow must prove genuineness of his conveyance, also that the woman understood the full import and nature of the transaction she was entering into, and that it was justified by legal necessity, (as to) the existence of which the alienee must satisfy himself by reasonable inquiry.

In neither of these cases, referred to by the learned Judge, however was it decided that an alienation of a husband''s property by a Hindu widow, if unsupported by legal necessity, is void, or that its validity can be impugned by any party other than those who would be entitled to the property by survivorship, inheritance or escheat. In the case of Collector of Masulipatam v. Cavaly Veneata Narainapah (1861) 8 MIA 529, what was decided was that the Crown, taking by escheat the property left by a Hindu husband, was entitled to challenge his widow''s alienation of it as unsupported by legal necessity.

In the case of Bhagwat Dayal Singh v. Debi Dayal Sahu (1908) 35 Cal 420, it was by a reversioner and his assignees that the claim of the alienee from the widow was resisted, and the observations of the Judicial Committee in that case regarding what must be proved by the alienee have no application to cases between such alienees and third parties. As their Lordships had pointed out in Bijoy Gopal Mukerji v. Krishna Mahishi Debi (1907) 34 Cal 329, a Hindu widow is the owner of her husband''s property subject to certain restrictions on alienation and subject to its devolving upon her husband''s heirs upon her death, and her alienation is not absolutely void, but is only prima facie voidable at the election of the reversionary heir.

There can be no question that an alienation by a Hindu widow even without legal necessity is valid as against strangers to the reversion, and that such questions as those of legal necessity and the adequacy and the passing of the consideration can only be raised by a limited class of parties, and not by such strangers. It is doubtless on this account that the learned Judge below finally found that the kabala was not "valid in the eye of the law so as to make the title of the plaintiff complete." The question is whether on the title found, the plaintiff was not entitled to a modified declaration. The Magistrate''s order of attachment u/s 146, Criminal P.C., remains in force

until a competent Court has determined the rights of the parties thereto, or the person entitled to possession thereof.

The plaintiff however did not frame his suit in such a way as merely to get rid of the bar to possession caused by the Magistrate''s order, doubtless because Kankal had claimed the land as Tulsi''s adopted son. Had he been dispossessed by Jagdeo and Kankal, and had there been no order passed by the Magistrate u/s 146, he would have had to sue in ejectment; and according to the leading Calcutta case of Nisa Chand v. Kanchiram Bagani (1899) 26 Cal 579, such a suit would not have succeeded, as not brought within six months of the dispossession, unless he proved a subsisting title as distinguished from mere prior possession, while on the findings of the lower appellate Court, his title came to an end on Chando''s remarriage, an event which according to a former deposition of Jagdeo (apparently accepted by the lower Courts) took place in Magh 1327, i.e., a couple of months or so after her sale to the plaintiff.

But that question does not arise in a case like the present, as was pointed out in Shyama Charan v. Surya Kanta (1910) 6 IC 806, to which our attention was drawn on behalf of the appellant. In this decision Nisa Chand v. Kanchiram Bagani (1899) 26 Cal 579 was distinguished and doubted, nor has this last case been accepted as good law in this Court: see Sahodra Kuer v. Gobardhan Tewari 1917 Pat 546, and other cases referred to in Chaturbhuj Singh v. Sarada Charan Guha 1933 Pat 6, in which the plaintiff in an action of ejectment was held entitled to succeed on the strength of his prior possession only. Shyama Charan v. Surya Kanta (1910) 6 IC 806 case was not quite accepted in Manik Borai v. Bani Charan Mandal (1910) 10 IC 469, cited for the respondents, and was recently distinguished in Naba Kishore v. Paro Bewa 1922 Cal 198, as really turning not on mere prior possession, but also on title; but it was apparently accepted as good law in Sahodra Kuer v. Gobardhan Tewari 1917 Pat 546.

This does not however entitle the appellant to succeed in his present suit, brought as it was on the definite footing of "an absolute title" (see para. 12 of the plaint) for the reason already indicated: he alleged not only legal necessity in paras. 3 and 4 of the plaint, but also actual payment of the consideration in para. 5, and one of the declarations sought in the relief portion of the plaint was that Mt. Chando had sold the property to the plaintiff "for satisfaction of the dues of her husband and legal debts." No alternative claim was made based upon possession.

The material issues framed were:

Is the kobala of the plaintiff a collusive document and for consideration and is the sale under the kabala a valid sale? * *

* * * 5. Has the plaintiff got any right to the land in suit and is the plaintiff entitled to a declaration prayed for?

These issues were discussed together by the trial Court, and one does not in that discussion find a word about possession on any right based or it. Stress has been laid on behalf of the appellant on the portion of the judgment of the learned Subordinate Judge in which

it is declared that he has title to the disputed land and he was in possession of it since his purchase till the date of attachment;

and it has been urged that this implies a finding of possession which has not been set aside by the lower appellate Court.

No claim however appears to have been advanced before the lower appellate Court on the basis of plaintiff''s prior possession, and it is difficult to see why that Court should be expected to set aside an implied finding on which no claim was advanced before it. Even if the contrary were to be held, it does not seem that the present is a proper case in which to allow the appellant to change his ground from an absolute title to a title which only lasted two or three months, though his possession may well have continued for four or five years, and treat as surplusage "the satisfaction of the dues of her husband and legal debts" which the plaintiff had so deliberately made a part of his case. A. declaration is essentially a discretionary relief.

The lower appellate Court as the final Court of fact has found one suspicious circumstance after another against the plaintiff, beginning with the fact that the thumb-impression of Mt. Chando was not taken either on the sale-deed, which is the basis of the plaintiff''s title, (such as it was), or on the mortgage bond which the plaintiff had taken from her four months previously and within a couple o� months of Tulsi''s death. The sale-deed was (in the words of the learned District Judge) obtained from the widow

in hot haste without caring to make any inquiry in respect of the debts, the creditors or the legal necessities thereof, and also without inquiring whether there was no sufficient income of the properties in the hands of the Musammat to satisfy those debts. Nor the Musammat was given any opportunity to have any independent advice in the matter. She, I am constrained to observe, could not fully understand the significance and effect of the transaction she was entering into.... What did the Musammat get by the transaction? Nothing practically.

Though the plaintiff set out to show that he had actually paid the widow''s creditor, the finding of fact is that he has entirely failed on the point. Shortly after the sale to the plaintiff, Chando left the family and married Jagdeo; and

it is an admitted fact on both sides that Tulsi left a daughter, Mt. Razia, who gave evidence in the case for the plaintiff (sic) a mistake for ''the defence''.

On these findings of fact the plaintiff''s kabala could not have stood against the widow nor against the admitted heir, if impleaded. It is pretty obvious on these findings that the plaintiff has played a fraud upon Razia, Tulsi''s daughter by his former wife and aged only 16, if not also on his vendor, an illiterate woman who left the family shortly after the sale. In these circumstances the lower appellate Court was, in my opinion, entirely justified in holding the plaintiff to the precise claim put forward in the plaint and coming to the conclusion that he "is not entitled to the declaration prayed for by him."

The appeal fails and must be dismissed. Long after the arguments in this appeal, and while this judgment was being typed, Mt. Razia, applied to be added as a party respondent. The application was made far too late to be entertained, and there is still time for her to establish her rights in the ordinary way.

Macpherson, J.

I agree that the suit and this appeal must fail. The plaintiff-appellant made a case of title and failed to establish it. Further, speaking for myself, he must also have failed if he had come on previous possession (or practically on appeal against the order u/s 146), for (at least at the date when the suit was brought) he would have had to show that he was entitled to possession against the whole world.