ML KAMLABAI Vs. SHEO SHANKAR DAYAL

JUDGEMENT

(1.) This is an appeal against the decision of the Nagpur High Court partly reversing the decision of the Extra Subordinate Judge, First Class, Bilaspur. The decree of the trial court concerning houses Nos. 2 and 3 was affirmed by the High Court.

(2.) One Mst. Jotkunwar executed a document in 1906 in favour of her daughter Jira Bai and the sons of Jira Bai, Brindaban, Mathura Prasad and Nankaiya, transferring to them the properties mentioned in the document. Thus Jira Bai and her three sons had four annas share each in the said properties. Mst. Jotkunwar, however, reserved to herself cultivating rights in sir lands consisting of 91.5 acres. Nankaiya died in 1909 and on his death his share was recorded in the names of Jira Bai and her two sons Brindaban and Mathura Prasad. In the month of November, 1918 both Brindaban and Mathura Prasad died. Mathura Prasad was unmarried and Brindaban left a widow, Mst. Ramdulari. The interest of Mathura Prasad was mutated in favour of Padumnath, husband of Jira Bai, and that of Brindaban in favour of his widow, Ramdulari. The property thus came to be divided into three shares - 1/3 each to Jira Bai, Padumnath and Ramdulari. Jira Bai died on 26-7-1927. There had been some litigation in 1923. After the decision of the Court, mutation took place and 3/4 share in the property was recorded in the name of Padumnath and 1/4 in the name of Ramdulari. On 9-2-1938, Padumnath made a gift of his 1/4 share in favour of his daughter Kamalabati alias Kamalabai. Padumnath died on 10-4-1938.

(3.) Mst. Jotkunwar's husband, Raghurai, had a brother Ramprasad who died in 1902 leaving two sons Sheoshankar Dayal, the plaintiff in the present suit, and Ramdayal who died in 1918. Sheoshankar Dayal filed the present suit on 25-1-1943. His case was that the document of 1906 was a deed of gift and not a deed of surrender in favour of the next reversioner. On the death of Jotkunwar he was entitled to the suit property as the gift could not operate after her death. The trial court held that the document of 1906 was not a deed of gift. Mst. Jotkunwar had completely divested herself of the entire estate and there had been a valid surrender of the whole estate by her in favour of Jira Bai and by Jira Bai in favour of her sons. The trial court further found that Kamalabai and Ramdulari had been in adverse possession of the properties from 26-7-1927. The plaintiff's suit was accordingly barred by limitation. The Subordinate Judge, accordingly dismissed the plaintiff's suit.