BABUAIN CHANDRAKALA DEVI Vs. POKHRAJ KUER

JUDGEMENT

(1.) These two appeals have been heard together, as the facts in both the cases are common and the contesting parties are the same. In both these appeals, Srimati Chandrakala Devi, widow of Sri Bhagwati Saran Singh of Anapur, is the appellant. First Appeal No. 118 of 1951 arises out of a suit instituted by the three daughters of Sri Bhagwati Saran Singh for a declaration that the sale of Mirapore Uchauli, Pargana Sonout, tauzi No. 3151, in the district of Gaya, including 7.65 acres of bakast land in the said village by virtue of a sale deed executed by their father on the 17th August, 1937, in favour of Keshwar Singh (defendant No. 1 is void, and for recovery of possession of the said property with mesne profits. First Appeal No. 263 of 1955 arises out of a suit filed by Keshwar Singh and others for a decree for a sum of Rs. 28,545-6-0 together with interest up-till the date of realisation and pendente lite.

(2.) It is necessary to set out in some details the introductory facts which are not in dispute. Sri Rameshwar Prasad Singh of village Chainpur in the district of Saran succeeded to the estate of Raja Kotal Narain Singh of Maksudpur as his daughter's son. On the 26th of November, 1902, Raja Rameshwar Prasad Narain Singh executed a Will by which he gave a life estate to his wife, Rani Sunder Kuer, and absolute estate to his two daughters, namely, Srimati Godawari Kuer and Srimati Muratmati Kuer. That very year he died. In the year 1903, a litigation cropped up between Sri Chandreshwar Prasad Narain Singh, brother of Raja Rameshwar Prasad Narain Singh, and Rani Sunder Kuer (Title Suit No. 50 of 1905). That case was ultimately compromised on the 17th January, 1909 and according to the terms of the compromise, the entire Maksudpur estate except the sixteen villages which were the self-acquired property of Raja Rameshwar Prasad Narain Singh, went to his brother, Sri Chandreshwar Prasad Narain Singh, and in the sixteen villages aforesaid, Rani Sunder Kuer, widow of Raja Rameshwar Prasad Narain Singh, got a life estate and the remainder went to the daughters. The debts of the late Raja were also divided. In accordance with the terms of the compromise, a sum of Rs. 14,00,000/- was made payable by Sri Chandreshwar Prasad Narain Singh, and a sum of Rs. 2,87,000/- and odd was made payable by the widow. On the 28th of November, 1910, Rani Sunder Kuer surrendered her life estate in the sixteen mouzas in favour of her daughters by a deed making them responsible for the payment of the outstanding debt which amounted to Rs. 2,18,000/- and odd. On the 27th of April, 1912, Rani Sunder Kuer died and her two daughters became the absolute owners of the said sixteen villages. On the 16th of April, 1917, Srimati Godawari Kuer executed a Will by which she gave the life estate of her interest in the 16 villages to her husband, Sri Bhagwati Saran Singh, and the remainder to her three daughters. On that very day she died. On the 3rd of July 1917, Sri Bhagwati Saran Singh appplied for probate of the Will on the ground that he was the executor. Ultimately, probate of the Will was granted to him and he started managing the property as the executor. It appears that on the 21st of December, 1917, he filed an application before the District Judge of Gaya for permission to transfer some of the properties of the testator. The application was, however, rejected on the ground that under the terms of the Will he had wide powers to transfer and alienate the properties in every way and as such no permission was necessary. Amongst the creditors was one Rai Shyam Krishnajee of Banaras. He filed an execution case for a sum of Rs. 1,09,000/- and odd. At that time, the Maksud-pur estate was under the Court of Wards. In the execution case filed by Rai Shyaro Krishnajee, an objection was filed by the Court of Wards to the effect that the estate of Rani Sunder Kuer should be sold first. As a result of the said objection, one of the sixteen villages was sold for Rs. 35,300/-. The balance of Rs. 74,506/11!- remained unpaid. The said amount having not been paid by 1919, it went up to Rs. 78,8o3/7/-including interest. In that year, the decree-holder again applied for execution and made a prayer that the properties of Raja Chandreshwar Prasad Narain Singh should be sold. The Court of Wards, however, paid the entire decretal amount. It appears that on an application filed by Sri Bhagwati Saran Singh under Order 21, Rule 90 of the Code of Civil Procedure the sale of one of the sixteen villages, which had taken place in execution of the decree of Rai Shri Krishnajee of Banaras, was set aside sometime in the year 1921. In 1923, Sri Bhagwati Saran Singh executed a sale deed for Rs. 17,000/- in favour of the Mahant of Bodh Gaya and the entire amount was paid to the Court of Wards. When the sale was set aside, the creditor levied a fresh execution for Rs. 40,000/- and odd. One of the villages was sold and a sum of Rs. 13,700/- was realised leaving a balance of Rs. 36,000/- and odd. In 1926, there was adjustment of account between the parties and a sum of Rs. 40,000/- was liable to be paid half and half by Srimati Muratmati Kuer and Sri Bhagwati Saran Singh. Sri Bhagwati Saran Singh deposited a sum of Rs. 500/- payable by Srimati Godawari Kuer and Srimati Muratmati Kuer and took time to pay the balance sum. As the balance of the decretal amount was not paid, two villages, namely, villages Uchouli and Khairi, were sold on the 22nd April, 1926, for a sum of Rs. 36,000/- and were purchased by one Jangi Lal. On the 7th May. 1926, Sri Bhagwati Saran Singh deposited a sum of Rs. 35,385/-, which was the balance of the decretal amount, along with a sum of Rs. 1,810/-as statutory compensation at the rate of five per cent. on the decretal amount and the sale was set aside. On the 12th September, 1926, Sri Bhagwati Saran Singh brought a suit against Srimati Muratmati Kuer for realisation of half of the amount paid by him in Court and also for interest on the said amount. The matter ultimately came to the High Court and Sri Bhagwati Saran Singh got a decree. On the 17th of August, 1937, Sri Bhagwati Saran Singh executed a sale deed in favour of Keshwar Singh for a sum of Rs. 22,000/-whereby he sold his eight annas mokarrari interest in village Mirapore Uchauli, Pargana Sonout, district Gaya. On the same day, he executed a security bond in favour of Keshwar Singh. On the 21st of January, 1945, Sri Bhagwati Saran Singh executed a Will in respect of his properties and made Srimati Chandrakala Devi, his second wife, the executrix. On the 2nd of March, 1945, Sri Bhagwati Saran Singh died.

(3.) On the 22nd of January, 1949, Srimati Ramratan Kuer and Srimati Vidyavati Kuer, two daughters of Sri Bhagwati Saran Singh, filed Title Suit No. 7 of 1949 in the Court of the and Subordinate Judge, Gaya, giving rise to First Appeal No. 118 of 1951. Srimati Lokeshwari Kuer, the third daughter of Sri Bhagwati Saran Singh, was later added as a co-plaintiff. The plaintiffs challenged the validity of the sale of village Mirapore Uchauli, Pargana Sonout, tauzi No. 3151, in favour of Keshwar Singh (defendant No. 1) by their father on the 17th of August, 1937, mainly on the grounds that under the terms of the Will their father, Sri Bhagwati Saran Singh, had no power to sell any portion of their absolute estate and as such the sale effected in favour of defendant No. 1 could not enure beyond the lifetime of Sri Bhagwati Saran Singh, who had only a life interest in the property of Srimati Godawari Kuer. The main allegations made in the plaint were that in order to pay off a major and substantial portion of the debts due to Rai Shyam Krishnajee and others some of the villages out of the sixty villages were sold by Srimati Godawari Kuer and Srimati Muratmati Kuer to Sri Bhagwati Saran Singh for a consideration of Rs. 1,05,000/- under the sale deed dated the 23rd February, 1917, and the entire consideration money was left with Bhagwati Saran Singh for payment of the dues of Rai Shyam Krishnaji and others; that Srimati Godawari Kuer executed a Will on the 16th of April, 1917, giving a life interest to her husband, Sri Bhagwati Saran Singh, on conditions that he) would pay all the debts due from her and from Raja Rameshwar Prasad Narain Singh and would marry her three daughters, the plaintiffs, in a proper manner; that under the influence of the second wife, Sri Bhagwati Saran Singh lost all interest in the plaintiffs and began to commit various acts of waste in respect of the estate of Srimati Godawari Kuer; that he began to mix the income of the estate with his own fund and committed a serious breach of trust by failing to pay the debts of Sri Shyam Krishnaji and others which he had undertaken to do by the sale deed dated the 23rd of February, 1917, executed by Srimati Godawari Kuer and Srimati Muratmati Kuer; that when the plaintiffs came in possession of their share in the estate after the death of Sri Bhagwati Saran Singh, they learnt on enquiry that their father had executed a sale deed in respect of the eight annas share of village Mirapore Uchauli, Tauzi No. 3151, including 7.65 acres of bakast land in the said village in favour of defendants first party for a consideration of Rs. 22,000/-; that the recitals in the sale deed were incorrect inasmuch as Sri Bhagwati Saran Singh had taken no loan for the marriage expenses of the plaintiffs, nor was the property sold for payment of any debt of Srimati Godawari Kuer, or for payment of the decree of Rai Shyam Krishnaji; and that when the plaintiffs asked the defendants first party to give up possession of the property in dispute, they refused to do so.