MANTAPADA CHOUDHURY Vs. PURNAPRABHA PATHAK AND ORS

JUDGEMENT

(1.) This is Defendant's second appeal arising put of a suit for khas possession over 3 K. 5 lessas of land under dag No. 697 of 20 years New Settlement of Gauhati Town together with the constructions situated thereon and for compensation of Rs. 2,025.00. The Plaintiffs claimed to be the owners of the land and houses described m the schedule by virtue of a deed of gift executed by Musst. Thaneswari Kalitani Defendant No. 2 on the 20th Dec., 1950 in favour of the Plaintiffs. The land in dispute had dag Nos. 754 and 317 of area 2 kathas 4 lessas and dag Mo. 395/430 of area 16 lessas and at the resettlement; the patta and dag have been renumbered as patta No. 634 and dag No. 697 and the area is shown as 3 kathas 5 lessas. The owner of the said land and the houses was Defendant No. 2 mother of Plaintiff No. 1 Purnaprabha Pathak and mother-in-law of Plaintiff No. 2 Krishna Kanta Pathak. As She had no other heirs, she gifted away the suit land and the houses to the Plaintiffs.

(2.) Three points mainly have been urged in. this appeal. Firstly it is contended that the Defendant No. 2 being a limited owner, could not transfer the property by gift to the Plaintiffs. The document cannot be regarded as surrender by the limited owner in favour of the next reversioner, rirstly it was not a surrender of the entire interest of the limited owner and secondly it was a surrender not only in favour of the next reversioner-the daughter-but also her husband and thus there is no acceleration of succession, by the said deed. The Plaintiffs have no right during the lifetime of Defendant No. 2, the donor, to bring the present suit. Secondly it is contended that there was a renewal clause and in the absence of any intention on the part of the Defendant to give up pos session, the tenancy was automatically renewed and thus the Plaintiffs had no right to bring this suit.

(3.) In paragraph 3 of the plaint the Plaintiffs assert that Defendant No. 2 mother of Plaintiff 'No. 1 and mother-in-law of Plaintiff No. 2 having no other heir except Plaintiff No. 1, in order to augment succession, gifted away the suit land and houses to the Plaintiffs. The Plaintiffs thus relied upon the gift deed as a deed of surrender. The surrender by a widow is not a transfer in the sense that the transferee acquires title through a widow. The reversioner is entitled to inherit the property of the last male owner after the death of the widow and the widow by surrender of her right only accelerates the succession. It constitutes her effacement and the reversioner getting the prpperty by succession earlier than if he got it otherwise after the death of the widow.