RAM PALAT SINGH Vs. SUKAJ BALI SINGH

JUDGEMENT

(1.) EFFECT of declaration obtained by next reversioner against a limited owner on the right of third person qua the alienee, as a result of reversioner's death during the life time of limited owner, is the primary controversy raised in this petition directed against the order of the Deputy Director Consolidation. Smt. Rachhpati, a Hindu widow executed mortgage of sir plots on 25-6-1915 in favoure of one Raghuvir, petitioner's father, and gift on 3-1-1934 in favour of Suraj Bali Singh, opposite party (hereinafter referred as opposite party). One Chottu Rai, the next revesioner of Smt. Raohpala filed a suit for a declaration that gift dated 3-1-1934 was null and void. It was fought upto High Court and it was not effective to dispose of any interest in the said property as against the interest of the plaintiff Chhotu Rai. Chottu Rai died during the life time of Smt. Rachpati and she died on 19-10-1946. On 23-4-1960 opposite party filed a suit against petitioner under section 209 of the U. P. Zamlndan Abolition and Land Reforms Act but withdrew it on 2-5-64 with permission to file fresh suit. In consolidation proceedings the dispute arose between the mortgagee and the donee and both claimed possession and title. The Consolidation officer held the petitioner to be sirdar as he was in possession even after the death of Smt. Raohhpali particularly, when Sheo Shanker heir of Smt. Raohhpali did not contest. The appellate authority found, that in view of Civil Court judgment in the suit for cancellation of the gift deed, the gift became inoperative after Smt. Rachhpatti's death and mutation of opposite party's name in revenue extracts did not bestow any title on him. and the petitoner being in possession acquired rights under section 210 of U. P. Zainindari Abolition and Land Reforms Act. Both these orders were set aside in revision. It was held that the gift deed did not become inoperative after Smt. Rachhpali death. and as no objection was raised by Smt. Rachpali's heirs it was obvious that the opposite party was in cultivatory possession. He further found the opposite party to be grandsons (from the daughter) of Smt. Rachhpali as such entitled to succeed. On the petitioner's right under section 210 of U. P. Z. A. & L. R. Act he was of the view that the petitioner being mortgagees could not acquire rights by adverse possession. It cannot be doubted that the finding on possession, recorded by the Deputy Director, is based on no evidence. It was a question of fact which required determination and was not matter of inference. That the petitioner was in possession on the date Smt. Rachhpali died was not and could not be disputed. The Consolidation Officer found petitioner's statement regarding possession corroborated by entries in revenue extracts prior to the date of vesting, non-filing of suit by Smt. Raohhpali's heir and filing of suit for ejectment by opposite party. The finding was affirmed in appeal. The Deputy Director without considering any evidence held opposite party in possession only because no suit was filed against him by heirs of Smt. Rachhpali. Nor can the finding that the oposite party was entitled to succeed as next reversioner be maintained. The question of succession was never raised nor any issue was framed on this point. Moreover, the Consolidation Officer found that one Sheo Sankar was entitled to inherit Smt. Rachhpatti's interest. Without setting aside this finding the Deputy Director could not accept opposite party to be Smt. Rachhpatti's successor. It has been argued by the learned counsel for the opposite party that the order of Deputy Director Consolidation cannot be quashed as his findings on the other two questions that is the gift deed did not become inoperative after Smt. Rachhpali's death and that the petitioners did not acquire rights by adverse possession were well founded in law. Raohhpatti was a Hindu widow and a limited owner. A Hindu widow represents her husband's estate. She is the full owner except the limitation of transfer and its devolution on husbands' heir after her death (Mulla's Hindu Law paragraph 1976). A transfer made without legal necessity is invalid but not void. As owner she had a right to transfer and could pass valid title to transferee. But one of the indidents of widow's estate is devolution on husban's heir. As a result next reversioner could challenge the alienation either during the life time of limited owner or after her death. The distinction between challenge of a transfer under general law and transfer by-a limited owner is that a transfer otherwise valid is vulnerable for lack of legal necessity. But the right to challenge for lack of legal necessity is not available to every one. It is recognised as a right of the next reversioner only. Does such a right extend to mortgagee? The answer obviously is no. A transfer for adequate consideration without any fraud or undue influence is valid and binding. It binds the widow and vests a valid title in the transferee. This is however, subject to next reversioner's interest. If it is not challenged by him the title of the transferee is un-impeachable. The learned counsel for petitioner has relied on the judgment in Second Appeal no. 778 of 1940 between Suraj Bali Singh (opposite party) Vs. Chotty Rai (next reversioner) and has argued that the effect of declaration granted was that the gift deed was rendered null and void. The opposite party was bound by it and he cannot claim any title. A copy of the judgment has been filed as Annexure HI to the Writ Petition. The declaration granted by the High Court was:- "I think that the platintiff was entitled to a declaration in this form: 'A declaration that at the date of the execution of the deed of gift dated the 3rd of January, 1934, the first defendant Mst. Raohhpatti Kuar, was not entitled by adverse possession to an absolute beneficial interest in the property comprised therein and that the said deed of Gift was not effective to dispose of any interest in the said property as against the interest therein of the plaintiff, Chhotu Rai." The declaration was conditional. It was for the benefit of Chhotu Rai. No interest passed to the donee against Chhotu Rai. There is no finding that the gift deed was null and void. The argument, therefore, that the opposite party was debarred from basing his claim on gift deed cannot be accepted. In Ayodhya Prasad v. Mst. Senghar Kuer (A. I. R. 1932 Oudh 342) donee from a limited owner filed a suit for redemption against mortgagee. It was resisted on the ground that transfer was void. It was held:- "That the alienation was only voidale, not void and the mortgagee has no locus standi to resist the claim of the person who on the face of it had a perfectly good title td equity of redemption granted by the Hindu widow." To the same effect is the decision in A. I. R. 1921 Bom. page 413 and A. I. R. 1938 Cal. 468. It is thus clear that the gift deed did not become inoperative on Smt. Rachhpatt's death. and in any case the petitioner could not take up this stand. It may now be examined if the petitioner acquired any rights under section 210 of the Act. It has been found that the petitioner has been in possession since the life time of Smt. Rachhpatti. He entered into possession as mortgagee and continued to be so even after her death till the date of vesting. In Radhey Shyam v. Rama (1969 A. L. J. 1095), it has been held:- "Undoubtedly a certain change in the natutre of the legal rights of the Bhumidhar and his mortgagee was brought about by the Act but it could not have the effect of converting the permissive possession of the mortgagee into adverse possession. The mortgagee's rights to be in possession in the capacity of a usufructuary mortgagee (the words as such in Section 14 (1) may be noticed) certainly came to an end by the force of a statutory provision with the result that it became devoid or" legal sanction and was rendered entirely dependent upon the consent of the Bhumidhar which, would, therefore, be revoked at will. The revocation, had, to be a conscious and deliberate act of the Bhumidhar, and from the mere fact that the right of the moitgage to remain in possession became devoid of legal sanction it cannot be concluded the consent of the Bhumidhar stood automatically revoked." The same view has been affirmed by the Full Bench in Balwant V. Deputy Director Consolidation, A. I. R. 1975 All. 295. The learned counsel for the petitioner aruged that even if the petitioner was licensee it stood revoked in 1950 when the opposite party filed a suit under section 209. The argument is supported by certain observations in Radhey Shyam's case. The argument has been countered by saying that the suit having been withdrawn with liberty to lile fresh suit, parties were relegated to the same position and in law it shall be deemed that no suit was filed. and if that be, the revocation was non-existent. In reply it is urged that licence could be revoked orally, by any overt act or by filing the suit. and the withdrawal of the suit did not atlect the revocation of licence. The suit was filed on 23.4.60 whereas the cause of action, according to paragraph 9 of the plaint, copy of which has been filed as Annexure 9 to the rejoinder affidavit, accrued on 22.4.60. The revocation of license was anterior in time and' even if the suit was withdrawn it could not nullify opposite party's action prior to institution of the suit. The arguments give rise to interesting questions namely what is the effect of withdrawal. Are the entire proceedings obliterated. Does the withdrawal nullify anterior actions of the parties. On the facts of the case the answar may be only academic as it cannot be denied that the village where the land in dispute lay came under consolidation spell by a notification issued on 4.9.65 under section 4 of the U. P. Consolidation of Holdings Act. The limitation to file a suit under section 209 of Z. A. & L. R. Act was six years. It is thus clear that even if it is accepted that the licence was revoked on 22.4.60. the petitioner could not mature rights on 4.9.65. In the result this petition fails and is dismissed. The parties shall however, bear their own costs.