SHIWA KARU Vs. RAMLAL KODU

JUDGEMENT

(1.) ON a difference of opinion between Mr. Justice Mudholkar and Mr. Justice Tambe, the following two questions have been referred to me for decision: (i) Whether by virtue of the amendment of Section 11 of the Central Provinces Tenancy Act, 1920 (I of 1920) by the Central Provinces Act XI of 1940, the son of an occupancy tenant acquires by birth a right to challenge an alienation of an occupancy holding held by the tenant to a stranger; and (ii) whether allowing the son to challenge the alienation amounts to giving retrospective effect to the amending Act.

(2.) THE circumstances under which the questions were referred may now be stated. The four fields, the subject -matter of the suit, were originally the property of one Jagu. On his death they were held by his son Kodu who transferred the fields by a sale deed dated March 2, 1948, to the defendant for an ostensible consideration of Rs. 3,000. The plaintiff, a minor, is the son of Kodu, and he sued the defendant through his guardian mother Mirabai, claiming a permanent injunction restraining the defendant from disturbing the plaintiff's possession over the suit lands. Alternatively, he claimed a decree for possession in the event of it being found that he was not in possession of the lands at the date of the suit. The plaintiff challenged the sale deed as brought about by misrepresentation, inducement and undue influence practised by the defendant on his father Kodu who was a man of weak intellect. With this part of the plaintiff's claim I am not here concerned. Suffice it to say that it was found that the sale was due to 'material misrepresentation and inducement.'

(3.) THE trial Court found that the plaintiff was a member of the joint Hindu family consisting of himself, his mother Mirabai, father Kodu, and paternal grandmother Mst. Waji, wife of Jagu. Since it held that the sale was induced by misrepresentation and inducement, it set aside the sale and decreed the plaintiff's claim. An objection raised to the plaintiff's claim, that he had no right to claim the suit fields was negatived. The trial Court held that the amendment of the Central Provinces Tenancy Act by Act XI of 1940 gave the plaintiff, who was born after that Act came into force, a right to take by survivorship.