FATTU BHILA Vs. BHAWANIRAM DASHRATH

JUDGEMENT

(1.) THIS is an appeal by the defendant, now being continued by his legal representatives, from the concurrent judgments of the lower Courts decreeing the suit of the plaintiff for declaration of title and restoration of possession. The main question at this stage is one of law, whether the defendant, having recovered the properties in the suit from third-parties after litigation prosecuted by huh as the guardian of the plaintiff, and continuing in possession as guardian and manager of the plaintiff, can, without discharging his duties as guardian and manager by giving up possession, now be heard to plead that the decree in favour of his ward was illegal, and he is entitled to retain the property as one of the two reversioners. Secondly, a less important question is, whether the decision of the Courts of that time granting the property to the plaintiff on the basis of a will, can now be challenged because of a law banning the bequests of agricultural lands without the sanction of revenue authorities. The third question, which is one of fact, is, whether there was arrangement between the parties in 1940 by which the lands in suit were actually allotted to the defendant with the consent of the plaintiff; this has been decided by both the Courts against the defendant-appellant, on the finding that there was no such arrangement.

(2.) BROADLY speaking, the facts are common ground. There were three brothers, Nana, Nanji and Dashrath. The defendant Bhila is the son of Nanji while the plaintiff Bhawaniram is the son of Dashrath. At the relevant time, Nana was already dead, as also his son Girdhar, without issue but leaving two widows. The properties in suit are certain agricultural lands about the identity of which there is no dispute, that were before 1920 in the separate share of Nana, partition having already taken place between the three brothers. He executed a will bequeathing those lands (as well as certain other properties with which we are not presently concerned) to Bhawaniram, in those days, a minor. Upon Nana's death, his widowed daughters-in law refused to give up the properties, whereupon Bhawaniram sued them with Bhila (defendant) as his guardian. The suit being decreed, Bhila acting as Bhawaniram's guardian, took these properties in his possession. For some time after Bhawaniram's majority Bhila was still in possession as the manager of his erstwhile ward. After completing his studies at Indore, Bhawaniram came home in 1940 and called upon Bhila to give back all his properties; the latter refused to give these lands. An assertion of adverse title being thus made, the plaintiff brought this suit for declaration of title and recovery of possession; this was some years later, but within the period of limitation.

(3.) WHILE the plaintiff took bis stand on the decree obtained by him on the strength of the will in litigation in which the defendant himself was his guardian, the latter, for bis part, set up a twofold defence. Firstly, on facts, that when there was a "separation" in 1940, there was a re-allotment of the properties by which these properties fell to the lot of the defendant, and certain others including some that had been "willed" by Nana, fell to that of the plaintiff. Secondly, in addition, and independently of it, the defence was that since 1908 there was a law in Indore (Circular No. 13 of 1908) making it illegal for anybody to transfer a right of occupancy to another person except by sale and with the written permission of a duly empowered revenue officer. Bequest being a kind of transfer, and there being admittedly no permission, the defendant contended that the will and the decree did not exist in the eye of law; and on Nana's death, his properties were inherited equally by his two reversioners --nephews -- namely, the plaintiff (son of Dashrath) and himself (son of Nanji) and he is entitled to retain these properties as his share in reversion.