RAM TAWAKAL TEWARI Vs. MTDULARI

JUDGEMENT

(1.) This is a plaintiff's appeal and arises out of a suit for declaration that a dead of gift dated the 15 December 1926, executed by Mt. Sartaji and Mt. Abbiraji, who were arrayed as defendants 3 and 4 respectively, in favour of Mt. Sahdei defendant No. 1 and Mt Dulari, defendant No. 2 was invalid, ineffectual and null and void as against the reversionary rights of the plaintiffs. The property covered by the deed of gift admittedly belonged to a man named Sheo Mangal, who died leaving two sons named Kandhai and Bhagwati. Mt. Sartaji is the widow of Kandhai and Mt. Abhiraji is the widow of Bhagwati. Mt. Sahdei, defendant No. 1 was the daughter of Kandhai and Mt. Dulari defendant No. 2 is the daughter of Bhagwati. It has been found by the lower appellate Court that Bhagwati and Kandhai were separate from each other and its finding has not been and could not be challenged in the appeal before us. It has further been found by the lower appellate Court that Kandhai died leaving a son Ram Niwas and Bhagwati at the time of his death left a son named Ram Sunder. Both Ram Niwas and Ram Sunder died before the dead of gift assailed by the plaintiffs. On the death of Ram Niwas Mt. Sartaji sue-ceeded to the property of Ram Niwas and on the death of Bam Sunder Mt. Abhiraji similarly succeeded to the property of Ram Sunder. It is clear therefore that both Mt. Sartaji and Mt. Abhiraji had a life interest in the properties in dispute.

(2.) The plaintiffs, on the finding recorded by the lower appellate Court, are reversioners to the estate of Ram Niwas and Ram Sunder. They impugn the validity of the deed of gift inter alia on the ground that Mt. Sartaji and Mt. Abhiraji, having only a life interest in the properties covered by the deed of gift, were not competent to alienate the same and as such the deed of gift could not prejudicially affect their reversionary rights. The other allegations contained in the plaint need not be noticed in this judgment as those allegations cannot be held to be proved in. view of the categorical findings on questions of fact recorded by the lower appellate Court noted above. Mt. Sahdei and Mt. Dulari the donees resisted the plaintiff's suit on the ground amongst others that they, as the sisters of Ram Niwas and Ram Sunder respectively, were under the Hindu Law Amendment Act, Act 2 of 1929 entitled to succeed to the property inherited by Mt. Sartaji after their death and therefore, the plaintiffs were not the nearest reversioners of Ram Niwas and Ram Sunder and were not entitled to the reliefs sought by them. A similar defence was put forward by Mt. Sartaji and Mt. Abhiraji. The other pleas raised by them are, in view of the findings of the lower appellate Court, of no importance so far as the decision of the present appeal is concerned. The trial Court overruled the pleas urged in defence and decreed the plaintiff's suit. All the four defendants named above filed an appeal in the lower appellate Court. During the pendency of the appeal in that Court Mt. Sahdei died and then by an application dated the 3 May 1930, the pleader for the appellants asked for 15 days time to file an application for substitution of names. The time prayed for was presumably granted. On the 19 May 1930 an application was filed on behalf of the defendants in the lower appellate Court praying that Mt. Sahdei's name be removed from the array of the defendants. It was stated in the application that the names of the remaining three defendants should continue in the array of the appellants and that "there is no other heir of the deceased."

(3.) On the findings noted above the lower appellate Court was of the opinion that the aforesaid donees would under Act 2 of 1929 succeed to the estate of Ram Niwas and Ram Sunder after the death of their respective mothers and as such, the plaintiffs could not be the immediate reversioners of Ram Sunder and Ram Niwas and were not entitled to maintain the suit. In view of this finding it reversed the decree of the trial Court and dismiss. ed the plaintiff's suit. It also was of the opinion that the plaintiffs were estopped from denying the title of Mt. Abhiraji to the property in dispute. In view of the finding that Bhagwati was separated from Mt. Sartaji, there cannot be the least doubt that on the death of Ram Sunder Mt. Abhiraji succeeded to a mother's estate so far as the property of Bam Sunder is concerned and, therefore the question of estoppel has become a question of academicals interest. The lower appellate Court did not in the course of its judgment take note of the fact that Mt. Sahdei had died prior to the decision of the appeal by it and wrongly assumed that the plaintiffs were not the nearest reversionary of Kandhai and were not entitled to big estate after Mt. Sartaji's death. It is argued by the learned Counsel for the appellants that as Mt. Sahdei is dead the plaintiffs are the nearest reversioners to the estate of Kandhai and therefore they are entitled to the declaration sought for by them at least qua the estate of Kandhai.