GUR PERSHAD Vs. ASHARFI DEVI

JUDGEMENT

(1.) The dispute in this appeal relates to the property of one Munshi Ram who died in 1932 leaving a widow. Asharfi Devi, who is the plaintiff in the case, and two children both of whom were minors. One of these was a boy Sadhu Ram and the other a girl Lachhmi. The contest now is between Asharfi Devi and third degree collaterals of Munshi Ram.

(2.) After Munshi Ram's death, his sister Muni was appointed guardian of the minors. The property in suit was inherited by Sadhu Ram but he died on 7-121938. The property thereupon went to Lachhmi although, according to Hindu Law, Sadhu Ram's mother Asharfi Devi was the next heir. Lachhmi died in 1945 while she was still a minor and therefore while the property was still in possession of her guardian, who now was Jagan Nath, because Munshi Ram's sister had in the meantime died, the collaterals applied to the Guardianship Court for possession of the property left by Lachhmi. The Court directed them to file a civil suit. The collaterals thereupon brought a suit against the Punjab Government and also impleadea the guardian. Asharfi Devi applied to be made a party in this case because she wanted to defend the suit and claim possession of the property herself. Her prayer was rejected and she was therefore not made a party. The suit of the collaterals was decreed on 1-8-1950. The Asharfi Devi on 23-4-1951 brought the present suit for a declaration that she was the next heir after Sadhu Bam and Lachhmi and was therefore entitled to succeed to the property in preference to the collaterals. The collaterals resisted the suit and pleaded that Asharfi Devi had married after Sadhu Ram's death and further pleaded that she had abandoned her rights to succeed to Sadhu Bam because she had allowed Lachhmi to succeed. The suit was decreed fey the trial Court and this decision was upheld on appeal by the learned Senior Subordinate Judge.

(3.) Two points were raised before me by Mr. Tuli. He contended in the first place, (and this is his more important point), that Asharfi Devi had abandoned her rights because she did not claim the land on Sadhu Ram's death. This abandonment amounted to her virtual death so far as succession to the property in dispute was concerned, On her abandonment, the next heir Lachhmi succeeded to the property, and now that Lachhmi has died, Asharfi Devi cannot revive her lost claim. Were this a case of abandonment, the argument would certainly hold good and Asharfi Devi would not be entitled to claim the property. But there was no abandonment by Asharfi Devi at any time. Abandonment is a positive voluntary act. The inactivity or the passive attitude of a person cannot be interpreted as an act of abandonment. The silence or inactivity of a person may in certain cases invoke the doctrine of estoppel but that will arise under wholly different circumstances. In the present case there is no question of estoppel because the failure of Asharfi Devi to claim the land after Sadhu Ram's death did not in any way affect the position of the collaterals. Her silence did not act to their detriment and they were no worse off than before. Therefore this is clearly not a case of estoppel. Indeed Mr. Tuli conceded that he did not rely on the doctrine of estoppel. He contended only that abandonment may be inferred from the omission or failure of a person to assert his rights. As far as I know the inactivity or the passive attitude of a person has never in law been interpreted as an act abandonment. Abandonment is a positive act. A man must expressly say that he gives up his right. If he remains quite, it cannot be said that he is forsaking his title to property or his interest in any other matter. Mr. Tuli relied upon a decision of the Supreme Court in -- 'Natvarlal Funjabhai v. Dadubhai Manubhai', AIR 1954 SC 61 (A). In that case, however, there was a positive express act of abandonment which took the shape of a deed of surrender executed by a Hindu widow and Mukherjea J. observed that such an act amounted to the complete effacement of the widow's right as heir. He remarked-