NATHUNI MISSIR Vs. MOSAMMAT RATNA KUER

JUDGEMENT

(1.) This appeal was preferred by Pandit Suraj Missir and Pandit Nathuni Missir (Plaintiffs 1 and 2), but, during the pendency of this appeal, Pandit Suraj Missir died and now his sole heir Pandit Nathuni Missir is the only appellant in this appeal. They instituted a suit for a declaration that the deed of surrender dated 12-12-1946 executed by Mosammat Ratna Kuer (defendant 1) in favour of Mosmt. Deorani Kuer and Ramji Pandey (defendants 2 and 3) was illegal, invalid, inoperative and not binding upon them. According to the genealogical table, which was a part of the plaint, Ganesh Missir had three sons, viz., Bagar Missir, Harbans Missir and Gokhul Missir. Bagar Missir died issueless in a state of jointness with his two brothers. Harbans Missir had two sons Tilak Missir and Dwarika Missir. Tilak Missir naa one son Ramdeni Missir, who died issueiess. Dwarika Missir had three sons, viz., Sheodeni Missir, Raghu Missir and Ramchij Missir alias Ram Charitar Missir. Goknul Missir naa two sons, Rambhaju Missir, and Raghunandan Missir. Ram-bhaju Missir had two sons, Suruj Missir (Plaintitf 1) ana Sheonandan Missir. Sheonandan Missir left one son Hirdeya-nand Missir, who died issueiess. Raghunandan Missir Lett two sons, Nathuni Missir (Plaintiff 2) and Ram Kripal Missir. Sheodeni Missir died long ago leaving behind no issue before survey operations while he was joint with Ragnu, Missir and Ramchij Missir. Ramchij Missir died in 1922 leaving a widow Mosmt. Shirajo Kuer (defendant 4) and two daughters, viz., Deorani Kuer (defendant 2) and Shureshra Kuer. After the death of Ramchij Missir, Raghu Missir came in possession of all the properties belonging to that family and he died issueiess in 1926 leaving behind his widow Ratna Kuer (defendant 1). The said widow came in possession of the properties as a limited owner. Plaintiffs case further was that Ratna Kuer went out of her house in 1941 for Ganges bath, but she did not come back. She could not be traced out and there was a rumour tnat she was drowned in the river. After her disappearance, plaintiff came in possession of the properties as legal heirs on Raghu Missir and Ratna Kuer, but they put Shirajo Kuer (defendant 4) in possession of the properties in lieu of maintenance which she was entitled to get from the estate of Raghu Missir. Defendant 4 executed a deed of usufructuary mortgage for Rs. 1,400/- on 21-7-1942 in the name of Tribhuwan Sharma and when the plaintiffs learned or that transaction they took back possession of the properties. Plaintiffs instituted a title suit No. 153 of 1944 in the Court of the Munsif, third Court, at Arrah, against defendant 4 and Tribhuwan Sharma for possession of the mortgaged land. The suit was transferred to the first Court of we Munsif and he dismissed the suit on 22-1-1948 holding that Ramchij Missir died later than Raghu Missir. Title Appeal No. 128 of 1948 against that decree was dismissed on 15-12-1948 and a Second Appeal No. 265 of 1949 also arising out of the said suit was unsuccessful on 7-1-1953, subject to the modification that the question as to whether Raghu Missir had died earlier than Ramchij Missir was left open for future adjudication. Ratna Kuer (defendant 1) having conspired with defendant 4 executed a deed of surrender on 12-12-1946 in favour of defendants 2 and 3 during the pendency of the said suit, but the plaintiffs fearnt of it later. Ratna Kuer described defendant 2 as her daughter and defendant 3 as her daughter's son in that deed, but in fact it was not so. Raghu Missir was married only once and Ratna Kuer was his widow. Defendant 2 was the daughter of Ramchij Missir and she was married in village Bagipakhar with Nityanand Unoubey and she had no issue. Ramji Pandey (defendant 3) was the son of Jagarnath Pandey of village Pandeypur. Defendant 4 had another daughter Sureshra Kuer and she was married to Rampujan Pandey, brother of Jagarnath Pandey. Plaintiffs alleged that Raghu Missir being the last male-holder, the widow and the daughters of Ram Charilar Missir had no title to the properties in question and the deed of surrender by Ratna Kuer in favour of defendants 2 and 3 was illegal, invalid and inoperative. Defendants 2 and 3 never came in possession of the properties mentioned in the said deed and, on the other hand, the plaintiffs as heirs of Raghu Missir came in possession of all the properties of Raghu Missir after the disappearance of Ratna Kuer. They further averred that they had acquired title to those properties on account Of their adverse possession. On these allegations, they filed the plaint first on 4-8-1954 in the Court 01 Munsif, but it was returned to be presented before a competent Court and then it was filed in the trial Court on 6-3-1956.

(2.) Defendant 1 supported the case of the plaintiffs alleging that they were the legal heirs of Raghu Missir who was the last male-holder. Her case was that she left the house long ago and then the plaintiffs took possession of the properties. Defendant 2 was the daughter of Kamchij Missir and Shirajo Kuer. Defendants 2 and 3 were not the heirs of Raghu Missir and she did not execute any deed of surrender in their favour. Rampujan Pandey, son-in-law of defendant 4, asked her to execute a general power of attorney in his favour in order to enable him to look after the property and giving her that impression, he got a aeea executed by her which later on transpired to be a deed of surrender in place of a power of attorney. It appears that while the suit was pending, she filed a petition of compromise as well admitting the case of the plaintiffs, but defendants 2 to 4 objected to the recording of the compromise on the ground that it was fraudulent and the petition of compromise was forged.

(3.) Defendant 4 filed a separate written statement ana her case was that the genealogy, set up by the plaintiffs was incorrect, inasmuch as Gokhul Missir and Bagar Missir were not the sons of Ganesh Missir. According to her, Gokhul Missir was the son of Nidhi Missir and that being so, the plaintiffs had neither any concern with the family of Harbans Missir, nor could they be the heirs of Raghu Missir. She alleged that Ramchi} Missir was the last male-holder and, as such, he came in possession of all the joint family properties. After his death, she came in possession of these properties as a "Hindu widow". Defendant 2 was not her daughter and, on the other hand, she was the daughter or Raghu Missir by his first wife Mosmt. Sumaro Kuer. Defendant 2 was married to Jagarnath Pandey of Pandeypur and defendant 3 was her son. Defendant 1 did not go out of ner house on the pretext of taking bath in the Ganges, but she had left the village and was residing in the town of Arrah. Defendant 1 ceased to have any concern with those properties and defendant 4 was in possession of those pro-perties in her own rights and not in lieu of maintenance as alleged by the plaintiffs. She executed the usufructuary mortgage bond for legal necessities and Title Suit No. 153 of 1944 was rightly dismissed throughout. She alleged that she was not in collusion with defendant 1 and, on the other hand, defendant 2 had prevailed upon defendant 1 to execute a deed in her favour and that of her son (defendant 3) in order to deprive her (defendant 4) of the properties. She claimed title on account of adverse possession as well in respect of all the properties and took the plea that the suit for a mere declaration was not maintainable. She filed an additional written statement denying the plaintiffs possession even for a single day.