DHANPATTI Vs. DEVI PRASAD

JUDGEMENT

(1.) In this appeal by special leave the only question that falls for decision is whether the High court was right in its conclusion that the appellant is precluded from contesting the claim of the plaintiffs on the ground that she had earlier made an election by which she is bound.

(2.) The suit from which this appeal arises is for partition. The facts found and undisputed at present are that the suit house belonged to one Gokul. He died several years back. Maharji, his wife, inherited his properties but she merely had widow's estate therein. On 1/05/1934, she gifted the house inherited by her from her husband to her two daughters, Dhanpatti (the appellant herein) and Sursati, the mother of the plaintiffs. The gift deed recited that the donees will enjoy the properties bequeathed to them absolutely. Sursati died on 19/02/1967. Her mother Maharji lived up to 1953. After the death of Maharji the plaintiffs brought the present suit for partition of the suit house. The appellant resisted that claim on the ground that she being the nearest heir to her mother, Maharji, is exclusively entitled to the suit house. Her contention was accepted by the Trial court as well as by the first appellate court but in second appeal, a single Judge of the High court of Allahabad reversed that decision on the ground that the appellant is precluded from claiming exclusive ownership of the house in view of the election made by her while accepting the gift made by her mother. The question for decision is whether this conclusion is sustainable in law.

(3.) The plaintiffs did not base their claim either on the ground of election or on estoppel. They sued solely on the basis of their title founded on the gift deed executed by Maharji. No issue as regards election or estoppel was framed nor any contention in that regard urged either in the Trial court or in the first appellate court. The contention based on the doctrine of election appears to have been raised for the first time in the High court. In our opinion the High court erroneously entertained that contention.