INDRAJIT BEHERA Vs. BHAJA MEHER

JUDGEMENT

(1.) SUKRU and Ghana were brothers. Plaintiffs are the sons of Sukru. The disputed property fell to the share of Ghana in a family partition. After his death, his widow rukmani inherited the property and was in possession. She sold the disputed land to defendant-1 in 1937 for Rs. 350/- Plaintiffs' case is that they are the sole next reversioners of Ghana. On Rukmani's death on 12-4-53 they are entitled to the possession of the suit property. Defendant-1 had transferred a portion of the disputed land in favour of defendant-2. The main relief claimed by the plain-tiffs was worded thus-"that the sale dated 24-9-37 being invalid beyond the lifetime of rukmani, title of the plaintiffs to the suit lands be declared and they be put in possession of the same. " defendants filed a joint written statement. Amongst other pleas, they averred that the market value of the suit land would be more than Rs. 7000/-, that the suit was grossly undervalued and that court fee was payable on the market value. The munsif of Patnasarh has jurisdiction to try suits upto the value of Rs. 4000/ -. The suit being beyond the pecuniary jurisdiction of the Munsif, should have been tried by the Subordinate Judge, Bolangir. The learned Munsif went into evidence and held that the suit was properly valued and was within his pecuniary jurisdiction. He did not examine as to which provision of the Court-fees Act was applicable to this case. According to him, even if the market value was to be taken into consideration, it would not be more than Rs. 2000/- to Rs. 3000/ -. But taking the view that the price of the property, as prevailing in 1937, would govern the case, he did not call for further court-tees and held that the suit was within his pecuniary jurisdiction. Against this order dated 28-9-65, the civil revision has been tiled.

(2.) MR. Mohapatra raised the following contentions-

(3.) IN (1907) 34 Ind. App. 87 (PC), Bijoygopal v. Krishna, the suit was for a declaration that an ijra granted by a Hindu widow of her husband's estate had become inoperative as against the plaintiffs (heirs of her husband) since her death, and for khas possession of the properties in suit with mesne profits. Their lordships construed such a suit as being substantially one for possession. There was no necessity for the declaration prayed, or to cancel or set aside the ijra. The plaintiffs were entitled to trea! the ijra as a nullity, after widow's death It would be profitable to extract their Lordships' view in their own language: "a Hindu widow is not a tenant for life, but is owner of her husband's property subject to certain restrictions on alienation and subject to its devolving upon her husband's heirs upon her death. But she may alienate it subject to certain conditions being complied with. Her alienation is not, therefore, absolutely void, but it is prima facie voidable at the election of the reversionary heir. He may think fit to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any Court, and he shews his election to do the latter by commencing an action to recover possession of the property. There is, in fact, nothing for the Court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir. It is true that the appellants prayed by their plaint a declaration that the ijra was inoperative as against them, as leading up to their prayer for delivery to them of khas possession. But it was not necessary for them to do so, and they might have merely claimed possession, leaving it to the defendants to plead and (if they could) prove the circumstances which they relied on for shewing that the Ijara or any derivative dealings with the property were not in fact voidable, but were binding on the reversionary heirs.