HARDEO SINGH AND OTHERS Vs. MS. KAUSHILLA KUNWAR

JUDGEMENT

(1.) The plaintiffs -appellants filed a suit for possession of certain properties detailed in the plaint on the ground that the properties bad belonged to one Madari Singh who died in the year 1895 leaving a widow Maharani Kuar. She was in possession of the properties as a Hindu widow and, on her death on the 20th of January, 1946, the plaintiffs became the owners of the property as reversionary heirs of her husband. Mahrani Kuar had in her lifetime executed a deed of gift in favour of one Nagai Singh on the 9th of February, 1911, and the plaintiffs, as reversioners, had filed a suit for a declaration that the deed of gift was not binding on the estate and would not operate after the death of the widow. This suit No. 100 of 1911 filed in the court of the Subordinate Judge, Unnao, was decreed on the 20th of May, 1912, and it was declared that, after the death of the widow, the property would go to the reversioners of Madari Singh and the deed of gift would not bind the reversioners. Nagai Singh, it is said, was murdered in September, 1942, and the defendant, his widow, obtained wrongful possession of the property Several pleas were taken in defence but the only plea that is now pressed is based on the effect of the deed of gift dated the 9th of February, 1911. In paragraph 11 it was mentioned that Mst. Maharani had relinquished her rights of a Hindu widow in favour of Nagai Singh on the 9th February, 1911, but that Nagai Singh was then not the nearest heir but he had continued in possession till his death and was in possession when the Hindu Law of Inheritance Amendment Act (11 of 1929) was passed. It was further pleaded that if the document dated the 9th February, 1911, did not effect a valid surrender, then the widow had at the time of the marriage of Nagai Singh's daughter made a fresh oral surrender of the estate. The trial court framed a number of issues as regard the oral surrender. The defendant had produced two witnesses, Badri Singh and Chandrika Singh. Their evidence was disbelieved by the learned Judge who recorded a finding that the oral surrender was not proved. That finding has not been challenged in this Court. The other findings of fact in favour of the plaintiffs have also not been challenged.

(2.) On the findings of fact recorded by the lower court, which have not been challenged, the plaintiffs are now he owners of the property, being the nearest reversionary heirs of Madari Singh. The deed of gift, it is pointed out on their behalf, does not stand in their way by reason of the decree in suit No. 100 of 1911. Learned counsel for the respondent has however, urged that the document of the 9th February, 1911, should be divided into two parts, the first part as an effacement by the widow, Maharani, of her widows estate, and the second part as a transfer of the property to Nagai Singh. Learned counsel has urged that, even if the second part was invalid, the first part must be held to be operative and the widow having effaced herself in 1911, the reversioners should have filed a suit for possession of the property in that year and by allowing Nagai Singh to remain in possession of the property for a period of more than twelve years, their claim was barred by limitation and Nagai Singh had become full owner of the property by adverse possession. In the alternative, learned counsel has supported the view of the lower court that though the document as a surrender may have been invalid in 1911, it became valid in 1929 when the Hindu Law of Inheritance Amendment Act (II of 1929) was passed.

(3.) To take up the first point first, it is not possible to divide the deed into two separate parts and treat the first part as an effacement by the widow of her widows estate. The relevant portion of the document dated the 9th of February, 1911, is as follows: - -