MATA PRASAD SHUKUL Vs. MUSAMMAT DEVI SHUKLIAN

JUDGEMENT

(1.) This is a Second appeal in a ease in which the plaintiffs claimed certain property as the nearest reversioners under the Hindu Law to the estate of one Mangal Nath, who died in 1903. It is common ground that possession over the estate of the deceased passed to his mother, Musammat Lekhraji, and we must take it that she took the fame as a Hindu widow. On January 1st, 1905, Lakhraji executed a deed of sale by which she purported to transfer outright the bulk of the landed property which had some to her from Mangal Nath to four vendees. One of the reliefs sought is to have this alienation set aside, or at least to have it declared inoperative after the death of the vendor. This is not the first litigation to which this sale deed has given rise; and as there is an issue of res judicata raised in the present suit, it will be convenient to consider at once the circumstances under which the previous suit was brought and the effect of the decision arrived at.

(2.) The husband of Musammat Lekhraji was one Hars Nath. He was the only son of Har Sewak Shukul by that gentleman s Second wife, but he had no fewer than five half brothers, sons of Har Sewak by his first wife. In 1905 the nearest reversioners living to the estate of Hans Nath, or of his son Mangal Nath, were four grandsons of Har Sewak, sons of two of his sons by his first wife, named Nakched and Bachoha. The sons of Nakched were Mata Parshad and Kalka Parshad, while the sons of Bachcha were Kashi Parshad and Brijnath. Of these the last named was a minor, living jointly with his brother Kashi Parshad. Amongst the more remote reversioners were two great grandson of Har Sewak named Lalta Parshad and Nath Parshad, the sons of a grandson named Chandra Ched. The sale by Musammat Lekhraji was in favour of the wives of Mata Parshad, Kalka Parshad, Lalta Parshad and Nath Parshad and the sale-deed was attested by Kashi Parshad as a marginal witness. The suit filed in 1908 was instituted by Murlidhar, another great-grandson of Har Sewak s, being the prardson of a son by the first wife, named Nagesbar. The vendees were of course impleaded along with Musammat Lekhraji, but Nath Parshad appeared in the array of defendants as the heir of his wife who bad died in the interval. Kashi Parshad and Brijnath were also impleaded as defendants, but were subsequently added as plaintiffs at their own request. Kashi Parshad declined to Act as guardian ad litem for his minor brother, so that Brijnath was represented by his mother. The suit was for actual possession of the property covered by the deed of sale, one of the allegations in the plaint being that Mangal Nath had died while a member of a joint undivided Hindu family with the plaintiffs and others, so that Musammat Lekhraji had no title whatever to the property with which she purported to deal. In the alternative, however, a declaration was sought that the sale deed of January 1st, 1905, passed no title to the vendees beyond the lifetime of Musammat Lekhraji and would not affect the rights of the reversioner or reversioners entitled to succeed to Mangal Nath s estate on the death of that lady. The trial Court dismissed this snit on a variety of grounds, It found that Mangal Nath died as a separated Hindu, and went on to hold that there was & misjoinder of causes of action involved in the attempt to obtain alternative relief by way of a declaration as to the ineffectiveness of the transfer beyond the death of Musnmrnat Lekhraji. For this reason perhaps the Court declined to go into the question as to whether there was legal necessity for the transfer. It held, however, that, if the suit were to be treated as one brought by a reversioner to contest an alienation by a Hindu widow, then Murlidhar was not entitled to maintain such a suit in the presence of nearer reversioners. As against Kashi Parshad it found that he had assented to the transfer and was perfonally entopped from contesting it; finally it held that Kashi Parshad s assent bound his minor brother Brijnath. Against this decision only Murlidhar and Kashi Parshad appealed; the latter did not take the trouble to see that an appeal was also preferred, if only as a matter of form, on behalf of Brijnath. In l909, while this appeal was pending, Musammat Lahkraji died. The appellants Murlidhar and Kashi Parshad thereupon petitioned the Appellate Court to be permitted to withdraw from the suit with liberty to bring a fresh suit; in their petition they said that the suit as brought was undoubtedly open to objection on the ground of misjoinder of causes of Act ion, and added farther that the death of Musammat Lehkraji had considerably modified the position of the parties and their respective rights. The order of the Appellate Court on this application is dated April 12th, 1912, its effect is to substitute for the decree of the first Court dismistirg the suit an order under Order XXIII, Rule 1 of the Code of Civil Procedure, permitting Murlidhar and Kashi Pars had to withdraw from the suit with leave to bring a fresh one; but this permission is in terms extended only to the two plaintiffs above named, they being the only appellants before the Court which passed the order. It may be noted that Brijnath was not even impleaded as a respondent to the appeal.

(3.) The present suit was filed on December 5tb, 1914. The plaintiffs are Mata Parshad and Brijnath. The latter has, in the meantime, attained majority; his position in the previous litigation has already been indicated. Mata Prashad, it will be remembered, is the husband of one of the transferees under the deed of sale; be was impleaded as a defendant in the former litigator, but did not then contest the validity of the alienation. The two plaintiffs now claim possession of the property affected by the deed of January 1st, 1905, on the ground that Musammat Lekhraji had only a Hindu widow s estate, that the alienation was without legal necessity and ineffective beyond the lifetime of the widow, and that they are themselves the nearest reversioners, entitled as such to possession of the property from the date when the succession opened on the death of Musammat Lekhraji. They admit the existence of Kashi Parshad as a reversioner equal in degree with themselves; but plead that he is disentitled to succeed inasmuch as he had "renounced the world" before Musammat Lekhraji died. The only defendant who has taken the trouble to contest the suit is Nath Parshad; be is indeed the person principally interested in doing so, His wife appears in the sale deed itself as the transferee of the larger portion of the property and as having advanced the largest portion of the purchase-money.