Sheoprasad Sahu and Another vs Deocharan Sahu and Others

Muhammad Noor, J.—The facts of the suit out of which this second appeal arises are these. One Kani Sahu had two holdings in Mauza Katu in the District of Ranchi, their total area being 5-30 acres, Sometime before 1916 he left the village and went to reside at Itki, a place about three miles from Katu and there he executed a zarpeshgi lease for five years in respect of a portion of one of the holdings in favour of the plaintiff for Rs. 250. Later on in June 1919, before the expiry of the term of the zarpeshgi lease, he executed a registered surrender of the two holdings in favour of the landlord. Thereupon the landlord settled three plots of land, the subject-matter of the present suit, which were in zarpeshgis of the plaintiff, with him and the rest with some other persons. After that Kani died leaving four minor sons who are defendants Nos. 1 to 4 in the present suit. Two of them have since attained majority and the other two are still minors and are represented in the present suit by guardian ad litem appointed by the Court, The plaintiff instituted a rent suit against defendants Nos. 5 to 7 for the realization of the produce rent of the land in suit of the allegation that he had settled the lands with them. These defendants denied the relationship of landlord and tenant and alleged that they were holding the land not under the plaintiff, but under the sons of Kani. The rent suit was dismissed. Thereupon the plaintiff has brought the present suit for declaration of the title and recovery of possession, basing his title upon the settlement of the landlord and the surrender by Kani.

The learned Munsif who tried the suit held the surrender to be illegal. He held that the surrender was a transfer and Kani could not transfer the holding, which was the joint family property of himself and his four sons, without legal necessity and without consideration. He further held that the transaction was fraudulent, that Kani was an old man and was duped in this transaction, and the subsequent settlement relied upon by the plaintiff was also fraudulent. On appeal the learned Subordinate Judge has come to opposite conclusions. He has held that the transaction, namely, the surrender by Kani of his holding and the subsequent settlement of the land in dispute by the landlord with the plaintiff were bona fide and valid transactions. He has, therefore, decreed the plaintiff''s suit. The defendants have appealed.

It is contended by Mr. K. K. Banerjee appearing on behalf of the appellants that Kani having four minor sons was not competent to surrender the joint family holding without consideration and without any legal necessity. He contends that the surrender of a holding stands on the same footing as any other transfer of immovable property by a karta of a joint Hindu family. In support of his contention he has relied upon the observation in the judgment of Junira Prasad Singh v. Basdeo Singh 50 Ind. Cas. 872 : 4 P L J 548 : (1919) Pat. 245 which seems to have been accepted by Ross J., in the case of Deo Narain Sahu v. Ramnand Sahu 63 Ind. Cas. 211 : 63 Ind. Cas. 211. The learned Advocate further relies upon the case of Bykuntnath Dass v. Bissonath Manjhi 2 E. R. 268. In my opinion there is no force in these contentions and the cases relied upon by the learned Advocate have very little if any application to the facts of the present case. Under the law a raiyat has a right, unless otherwise precluded, to surrender his holding if he chooses to do so; and in the absence of any fraud or collusions this surrender is perfectly valid. There is no law under which a raiyat, who has minor sons, is debarred from giving up cultivation of his holding if he is not able to do so. It is clear from the facts as found by the learned Subordinate Judge that Kani ceased to reside in the village where the holdings were situated. He migrated to Itki and he mortgaged a major part of the holding, and the learned Subordinate Judge in the Court of Appeal below has held that the mortgage was bona fide and an honest transaction and that it was attested by one of the sons of Kani. It should be noted that in this case the two major sons of Kani have not appeared to contest the suit and the defence has only been put up by the guardian ad-litem appointed by the Court, on behalf of the two minor sons. It seems obvious that the persons who were interested in the holdings according to the contention of Mr. Banerjee, do not seem to have taken any interest in the case. Now Kani having mortgaged a major part of the holding and having ceased to reside in the village where the holdings were instituted, had very little interest left in the village and it would be absurd to expect him to cultivate a very small area which was left to him in a place three miles off from his home. Now unless it can be shown that the surrender by Kani was a dishonest transaction entered into with the intention of depriving his sons of their interest in the holdings, I see no reason why this surrender should not be upheld, especially when for years afterwards nothing seems to have been done to repudiate it. Had he not surrendered the holdings the circumstances are such that the landlord could have treated the holdings as abandoned. A landlord cannot refuse to accept a surrender on the ground that the tenant has minor sons.

Coming now to the cases relied upon by the learned Advocate, I take up Jumra Prasad Singh v. Basdeo Singh 50 Ind. Cas. 872 : 4 P L J 548 : (1919) Pat 245. There the question for decision was the nature of the interest which passed to the landlord on the surrender of a holding by a Hindu widow and how far that surrender was binding upon her husband''s relations. The District Judge found in that case that the surrender was an attempt on the part of the widow to defeat the right of succession of the reversioners. In that view the surrender was not an honest and bona fide transaction. No doubt this aspect of the question has not been discussed in the judgment of this Court, but I am not sure whether it did not influence the decision. Be that as it may, their Lordships held that by the surrender the landlord, acquired only a limited interest of the widow and no more. It is not necessary for the purpose of the present case to discuss the correctness of the decision. But with all respects to the learned Judges who decided that case, I feel grave doubts whether the general observations made in that judgment are correct. A widow though holding a limited interest represents for certain purposes her husband''s estate and I see no reason to debar her from surrendering a holding if she cannot manage it It is settled law that if a widow in the usual course of management settles a land with a raiyat, the raiyat acquires occupancy right in that land. However, as I have said, the facts of that case were quite different. Here we are concerned with the surrender made by a father of a family, and there is nothing to show in this case and in fact the finding of the learned Subordinate Judge is entirely against the view that there was any attempt on his part to deprive his sons of their rights in the holdings.

The next case relied upon is De Narain Sahu v. Ramnand Sahu (2). In this case the decision in Jumra Prasad v. Basdeo Singh (1), was distinguished by Ross, J. who, held that a widow could abandon a holding. In dealing with this case the learned Judge drew distinction between surrender and abandonment and observed that surrender was a transfer. This observation had been relied upon by Mr. Banerjee who contends that surrender in order to be valid must fultil all the requirements of a transfer including consideration, and, in the case of a karta of a Hindu joint family or of a Hindu widow, legal necessity In my opinion this will be carrying the analogy too far. Surrender may be transfer in some sense inasmuch as by it the limited interest which a tenant has in a particular land is transferred from the tenant to the landlord: or, in other words, the tenant''s right by the act of surrender is brought to an end. But to hold that surrender required consideration in order to be effective will not be warranted by anything which has been placed before us.

The last case referred to by the learned Advocate is that of Bykunthnath Dass v. Bis-sonath Manjhi (3). In that, case the tenant who has surrendered the holding was, as it appears from the judgment, recorded not as owing the holding on his own account only, but as a manager on behalf of the other members of the family. The Court held that the surrender by him alone was not similar to bring the occupancy right to an end. That case was not similar to the present one in which Kani who was the sole recorded tenant and the sole man who could have dealt with the holdings, surrendered the entire holdings to the landlord.

In my opinion none of the points urged on behalf of the appellants justifies any interference with the decision of the learned Subordinate Judge. The appeal fails and must be dismissed. As the contest has been on behalf of the minors by the guardian appointed by the Court, I do not think they should be made liable for costs of this appeal which should be borne by the respondent. The order for costs as passed by the lower Appellate Court will, however, stand.

Agarwala, J.

I agree.