MADAN MOHAN MISHRA Vs. BHARAT TIWARY

JUDGEMENT

(1.) Title Suit Nos. 57/3 of 1967/70 was filed in the Court of Subordinate Judge, Motihari by the two plaintiffs, namely, Bachani Kuer and Paspati Devi who are daughters of late Baban Tiwary. They were the original appellants before this Court. Defendant No. 1 Bhirgun Tewary is the nephew of late Baban Tiwary. Defendant No. 2 is Kira Kuar, wife of Rajendra Tewari who happens to be nephew of late Baban Tiwary. Defendants Nos. 3, 4 and 5 are also nephews of late Baban Tiwary. Rukmani Kuer (Defendant No. 6) is the second wife of late Baban Tiwary. The suit was filed for a declaration of right, title and interest of the plaintiffs in respect of properties left behind by their father, Baban Tiwary who died in 1945 leaving behing two widows Ram Pyari whose daughters are the plaintiffs and Rukmani who is defendant no. 6. It is not in dispute that defendant no. 6 had no child. It is the first wife from whom the two plaintiffs were born. Ram Pyari, the mother of the two plaintiffs also died in 1947. Thus, after 1947, it was defendant no. 6, the second wife of Baban Tiwary who inherited the linmed estate in terms of Hindu Women's Right to Properties Act, 1937. The plaintiff's case further is that in 1950, Rukmani Kuer executed a written surrendernama in favour of defendant no. 1 who, as noted above, is nephew of Baban Tiwary. It is further stated that the 1950 surrendernama was not acted upon as would be evident from the compromise decree in a subsequent suit. It is further their case that in 1951, defendant no. 6 Rukmani Kuer, their stepmother, surrendered the entire interest in the property to the plaintiffs orally and as she was issueless and a widow, she went back to her Naihar (mother's place). In 1961, defendant no. 6 sold a small piece of land and, thereafter in 1967, she sold, by two registered sale deeds, some more land from the property which belonged to late Baban Tiwary and that gave reason for the suit to be filed as the sales were being made after the surrender of her estate to the plaintiffs. In the suit, upon notice, only defendant no. 6 Rukmani Kuer appeared to contest the suit. In the written statement, defendant no. 6 admitted that the written surrendernama of the year, 1950 in favour of defendant no. 1, the nephew of Baban Tiwary, was not acted upon and was correctly recorded in a subsequent suit in the compromise decree but she denied any surrender of her limited estate to the plaintiffs. On behalf of plaintiffs, several witnesses were examined including relatives. The evidence on behalf of plaintiffs was consistent in respect of one fact that is that there was an oral surrender of the rights by defendant no. 6 and that the plaintiffs were now in possession and that defendant no. 6, after the surrender, had gone back to her Naihar being issueless and a widow. On behalf of defendant no. 6, she was herself examined as DW-5. Apart from others, in her examination-in-chief, she has denied surrendering the estate or going to her Maike which she has maintained in her cross-examination as well.

(2.) Before proceeding further, I deem it appropriate to deal with some legal consequences which are apparent and which have led to the institution of the suit. We are concerned with the estate of Baban Tiwary. He died in 1945 that is after the Hindu Women's Right to Properties Act, 1937. At the time of his death, he left behind two widows and two daughters from the first wife. In view of the provisions of the 1937 Act, the two widows inherited e. limited estate in the sense that but for exceptional cases they had no right to sell the property though they had full right to enjoy the same. The two daughters, who are ihe plaintiffs, were the first reversioners. In 1947, the first wife, the mother of the plaintiffs, died. Thus, the entire property vested in the second widow that is defendant no. 6 Rukmani Kuer. If the plea of surrender of her estate to the plaintiffs in 1951 is not to be accepted, the result would be that by virtue of Hindu Succession Act, 1956, the limited estate of defendant No. 6 would become absolute and the two daughters of Baban Tiwary would then be totally excluded from any claim thereunder. Thus, the crucial thing to be decided is about the oral surrender of estate by defendant no. 6 to the plaintiffs.

(3.) First material thing to be noticed is that apart from Rukmani Kuer (defendant no. 6), the rest of the defendants, who were nephews of Baban Tiwary, chose not to appear in the proceedings. The suit proceeded and was decided ex parte as against them. It is only in this Court after the death of defendant no. 6, who was the sole respondent before this Court in appeal, that they have intervened in these proceedings and have chosen to take interest for obvious reason because the two plaintiffs died prior to defendant no. 6. Now if the appeal is to be dismissed then as Rukmani Kuer also died leaving no heirs, they would become the reversioners and inherit the property but if the appeal is to be allowed, they would lose this chance.