Jiwan Singh vs Misri Lal

Hobhouse, J. 1. The question is not so much what is the legal construction of the deed as what must Jaikishan be deemed to have consented to. It is a very stringent equity that is sought to be enforced against him arising out of an alleged consent. 2. He consented to the express terms of the deed, which were that the purchaser should become absolute owner, and which the High Court must have overlooked when it said there was no expression to that effect. Jaikishan subsequently took a mortgage of the estate from the purchaser.

Hobhouse, J. 3. The highest Court having taken that view of the deed, it is impossible to say that Jaikishan must necessarily have taken the opposite view, and to hold him and all other reversionary heirs bound accordingly. 4. There is evidence of subsequent conduct both against Jaikishan and Meghraj shewing that they consented to the transaction. 5. The respondent did not appear. 6. The judgment of their Lordships was delivered by Richard Couch, J. 7. The property in question in this appeal formerly belonged to one Sita Ram, who died leaving two sons, Baldeo Das and Jaikishan Das. Baldeo Das, the elder, died leaving a widow, Mussummat Nabbo, and an adopted son, Kashi Ram. The latter died without children, leaving a widow, Gomti, who thereupon took by inheritance the estate of a widow under the Hindu law. Nabbo, who took nothing, died in 1878, and Gomti died on March 8, 1880. Jaikishan Das had two sons, Bhabuti Ram and Kashi Ram, who was edopted by Baldeo Das. Bhabuti Ram, who survived his father, died in the lifetime of Gomti, leaving a son, Meghraj, who survived Gomti and died on May 22, 1881, leaving a son, the respondent Misri Lal. Consequently, on the death of Gomti, Meghraj became entitled as heir of Kashi Ram to possession of the property, which consisted of one-third of a mouzah called Begpur Kanjaula, pargana Koel. 8. On February 7,1890, Misri Lal, then a minor, by his guardian brought a suit against the appellant Jiwan Singh, who was in possession of the property, to recover possession of it and mesne profits. 9. The defence in the written statement was that, after the death of Kashi Ram, Jaikishan Das sold the property to Kewal Ram for Rs.1500, and a deed of sale in respect of it was executed by Jaikishan Das on behalf of Nabbo and Gomti under his supervision, and registered by his special power of attorney dated September 17, 1863; that Gomti adopted one Ranchhore Das as her son with the consent of Jaikishan Das; that the adopted son became the possessor of the property and money left by Kashi Ram; that a dispute arose between Gomti and Ranchhore Das which was compromised by part of the property left by Kashi Ram being taken by Gomti, part by Ranchhore Das, and the remainder being presented to Sri Maharaj Parsotum Dasji; and that, after the death of Goniti, Meghraj brought a suit on a bond which was given to Gomti under the compromise, and did not claim the property in the possession of Ranchhore Das and Gusain Parsotam Das. There was no proof of the adoption and no evidence of any legal necessity for the sale. The defence must rest upon the effect of the deed of sale and the conduct of Jaikishan with regard to it. The deed admitted in evidence for the plaintiff purported to be made by Nabbo and Gomti and to sell one-third share of the village Beghur Kanjaula, with all the rights and interests pertaining thereto, for Rs.1500; it stated that the vendors "put the vendee in possession of the share sold instead of us like ourselves "; and that " the vendee has become an absolute owner of the share sold from the date of sale." It was signed as follows: "Mussummat Gomti, Lambardar, wife and Mussummat Nabbo, pattidar, mother of Kashi Ram, heirs of Kashi Ram; by the pen of Jaikishan Das sarbarakar and mukhtar." It is dated September 17, 1863; and there was a power of attorney of the same date from Nabbo and Gomti to Jaikishan authorizing him to execute the deed and get it registered, which he did. Gomti only had an estate in the property; Nabbo had none. If the effect of the deed was to pass only the estate which Gomti had as widow, Misri Lal would be entitled to recover possession. Upon the evidence in the suit the question appears to their Lordships to be, Was it so clear that more than Gomti''s beneficial estate in the property--the estate which she might have sold if there had been a legal necessity for it--passed by the deed, that Jaikishan Das must be taken to have consented to its passing? The Subordinate Judge who dismissed the suit does not appear to have considered this question. He seems to have assumed that this estate would pass. When the case came before the High Court on appeal the two Jearned judges were of opinion that only the estate of the widow passed by the deed. In the judgment they say: " There is not a word in the sale deed which is inconsistent with the transfer being limited to the life interest of the widow-vendors. There is no expression such as is usually employed, to intimate that an absolute title was conveyed....the single member of the family, who helped and assisted in the making t of the transfer, is not shewn by a tittle of evidence to have consented to any transfer beyond the life interest of the widows." This view of the transaction is supported by the fact that there is no evidence that Jaikishan Das received any part of the Rs.1500 or was in any way benefited by or had any inducement to concur in a sale which would destroy his right as the apparent reversionary heir. Their Lordships do not think it is necessary for them to give any opinion upon the construction of the deed. The opinion of the High Court which has been quoted is conclusive that it cannot be so clear that the whole estate passed by the deed that Jaikishan Das must be taken to have consented to its passing. The answer to the other part of the defence is that Jaikishan Das was no party to the compromise in June, 1871, and that Meghraj''s claiming on the death of Gomti the share of the property which she took under it is not inconsistent with the claim in this suit, but the contrary. It was necessary for the appellant to displace the title by inheritance of Misri Lal by satisfactory proof that the whole estate, and not only the estate of Gomti as widow, was sold to Kewal Ram. He has failed to do this; and their Lordships will humbly advise Her Majesty to affirm the decree of the High Court in favour of the respondent and dismiss the appeal.