BHAGWAN SAHAI Vs. SUALAL

JUDGEMENT

(1.) THIS second appeal arises from the appellate judgment of the learned Senior Civil Judge, Jaipur District, dated April 25, 1959 upholding the trial court's decree dated April 9, 1958 in the plaintiffs' favour.

(2.) THE property which is the subject matter of dispute is situated in village Chitanu, Tehsil Jamwa Ramgarh, in the district of Jaipur. It was part of the property held by Ramchandra, the common ancestor of the parties whose relationship would appear from the following pedigree - Ramchandra Laxmi Narain d. s. 2003-4 Ram Sahai d. s. 2012 Sheo Nath d. s. 1974 Smt. Suudari d. s. 2010 Bhagwan Sahai (defendant) Sualal (plaintiff) Murlidhar (plaintiff) After Ramchandra's death, his three sons Laxmi Narain, Ram Sahai and Sheo Nath divided his property into three equal shares in Smt. 1970. each of them taking possession of his one-third share. Sheo Nath died in Smt. 1974 leaving behind his widow Smt. Sundari who succeeded to her widow's estate. All the same, a dispute arose between Laxmi Narain and Ram Sahai in regard to Sheo Nath's property and they drew up agreement Ex. A. 1 on Jeth Badi 12, Smt. 1975, to settle it amicably. This did not however end the dispute and the agreement was rescinded and replaced by a new agreement Ex. A. 2 dated Asoj Badi 15, Smt. 1984 (1927 A. D. ). Both Laxmi Narain and Ram Sahai signed that agreement. According to it, Smt. Sundari was allowed to hold the one-third share of her husband Sheo Nath for her life-time and it was agreed between the brothers that they would divide it equally after her death. Laxmi Narain died in Smt. 2003-4 and Smt. Sundari in Smt. 2010, the exact date of her death being January 10, 1954. Thus far, the facts are not in dispute in this Court. According to the plaintiffs, their father Ram Sahai inherited Sheo Nath's property as he survived his widow Smt. Sundari and was his nearest heir when the succession opened on her death. Ram Sahai died on Mah Badi 6, Smt. 2012, corresponding to 17, February 1956. THE version of the plaintiffs is that the defendant then took forcible and wrongful possession of Sheo Nath's property mentioned in paragraph 6 (A) 3 and 6 (A) (4) of the plaint and this gave rise to the present suit which was instituted on March 11,1957, for possession of the aforesaid property and for a declaration that the plaintiffs were the owners of Sheo Nath's entire property. THEre was also a claim for mesne profits. According to the defendant, on the other hand, he and his uncle Ram Sahai took over joint possession of Sheo Nath's property on the death of his widow and it was agreed between them that they would divide it equally after performing her funeral feast. Ram Sahai died before the feast could be performed and his sons and the defendant took possession of their respective shares in Sheo Nath's property. So the difference between the two versions is that while the plaintiffs contend that their father Ram Sahai succeeded to the property of Sheo Nath on the death of his widow and was in possession when the defendant took over forcible and wrongful possession of a part of that property, the defendant's version is that the property was divided by mutual consent.

(3.) IT will be recalled that Ex. A-2 replaced an earlier agreement and it provided that the one-third share of Sheonath would remain in the possession of Smt. Sundari, his widow, for her life-time and that on her death it would be divided equally between the two surviving brothers Ram Sahai and Laxmi Narain. The settlement or agreement was not therefore co-related to any property which had already devolved on the contracting brothers and for which it had become necessary for them to arrive at a family settlement. IT purely related to Sheonath's property which, as is obvious, was inherited by Smt. Sundari and was owned by her as a widow's estate. No one else had any right, title or interest in the property, the interest of the brothers being an expectant interest which may not have matured in their favour or in their life-time because it was an interest which was defeasible by circumstances like death or adoption in the family. When this was so, and Laxmi Narain and Ram Sahai had nothing more than an interest expectant on the death of Smt. Sundari or what is known as a spes successions, it was not a vested interest during her lifetime and it could not be made the subject of a contract, surrender or disposal.