MT SUNDER KUER Vs. SHAH UDEY RAM

JUDGEMENT

(1.) There are before us an appeal and a petition of cross-objections against a decree of the learned Subordinate Judge of Aligarh. The appeal is by the plaintiff, Mt. Sunder Kuer, and the cross-objection is by the first two defendants- respondents but it is for the benefit of defendant-respondent 3 also. The main reliefs claimed by the plaintiff-appellant were: (1) a decree for the ejectment of the first three defendants, described as defendants first party, and for possession over a half-share of certain property situated in Mauza Narharpur Dostpur, (2) a decree for the recovery of mesne profits to the extent of Rs. 3600 for the three years preceding the suit and for future mesne profits at the rate of Rs. 1200 per annum, (3) a decree for the recovery of Rs. 1474, principal and interest, as compensation for certain trees alleged to have been cut and appropriated by the first three defendants, and (4) a declaration in respect of a temple situated within the property in suit and for possession thereof. The learned Subordinate Judge, while holding that the suit was barred by the rule of estoppel as laid down in Section 115, Evidence Act, by the provisions of Section 41, T.P. Act, and by limitation, passed a decree for possession over the property in dispute subject to the condition that the plaintiff should pay a sum of Rs. 38,523 to defendants 1 to 3 within a certain time. The learned Judge further held that the plaintiff was not entitled to any mesne profits and that the claim for compensation on account of the trees alleged to have been cut by the defendants was barred by time. Consequently, the plaintiff has appealed, challenging the decisions on the questions of law and contending that an unconditional decree for possession over the properties in dispute should have been passed in her favour. The decisions on the questions of mesne profits and of compensation for the trees are also challenged. The petition of cross-objections, on the other hand, attacks the decree on the ground that, the Court having held that the suit was barred by estoppel, by Section 41, T.P. Act, and by limitation, the suit should have been dismissed in toto and no decree should have been passed in favour of the plaintiff. The petition further seeks to challenge the correctness of the finding of the Court below on issue 1 framed in the suit. The following pedigree will be helpful:

(2.) The family owned zamindari property in five villages, Narharpur Dostpur, the village in suit, being one of them. Upon the death of Narain Lal, which occurred in the year 1907, his two sons remained in possession of the family property as members of a joint Hindu family. Of them, the first to die was Sheo Prasad, the husband of the plaintiff. He died on 26 October 1918. Bas Deo Sahai's death took place on 25 August 1927. At the time of Basdeo Sahai's death, his son, Rajendra Behari Lal, defendant 4, described in the plaint as defendant second party, was an infant, having been born on 16 December 1920. His grand- mother, Mt. Nathia Kuer, applied to the District Judge under the provisions of the Guardians and Wards Act praying that she be appointed guardian of the person and property of Rajendra Behari Lal and her application was granted on 18 May 1928. Subsequently, she applied to the District Judge for permission to sell the properties situated in Mauza Narharpur Dostpur, in her capacity of certificated guardian of Rajendra Behari Lal, and permission as prayed was granted by the District Judge on 8 August 1928. Acting upon that permission, Mt. Nathia Kuer executed, on 15 September 1928, a deed of sale in favour of the first three defendants for a consideration of Rs. 90,000. It is this g deed of sale which the plaintiff seeks to challenge by this suit on the ground that Rajendra Behari Lal was not the owner of the entire property situated in Mauza Narharpur Dostpur, but of only a half share therein, and that the sale deed in respect of the other half was unauthorized. The plaintiff's case is that a partition had taken place between her husband, Sheo Prasad, and his brother, Basdeo Sahai, in the year 1917 by means of a deed of partition executed on 17 May 1917, and that, on Sheo Prasad's death, the plaintiff succeeded to his half share in the property as a Hindu widow and that Rajendra Behari Lal had no title to that half share.

(3.) The main allegations in the plaint were that Narain Lal was a man of substance and on his death in 1907, left, besides zamindari property, money in cash, money-lending business, indigo factory "and business of considerable value;" that Basdeo Sahai was a spendthrift and a man of "bad character" and wasted a considerable amount of money and contracted heavy debts without any lawful necessity; that Sheo Prasad finding that, Basdeo Sahai was mismanaging the property, and apprehending that the property would be wasted, separated from him by means of a deed of partition executed on 17 May 1917 under which each of the two brothers became the owner of a half share in the property and it was agreed upon that the zamindari property would be partitioned by metes and bounds within one month, either by mutual consent or through the Court; that, "shortly after" the execution of the deed of 17 May 1917, Sheo Prasad became ill and so could not get the zamindari property partitioned by metes and bounds; that, as the result of the execution of the deed of 17 May 1917, the family ceased to be joint and the brothers became tenants in common, but Basdeo Sahai continued to manage the entire property as a lambardar, that upon the death of Sheo Prasad on 26 October 1918, the plaintiff succeeded to his half share in the property as his heir; that the plaintiff, at the time of her husband's death, was a minor and Basdeo Sahai continued to manage, as a lambardar, the plaintiff's half share also and "at different times paid her money telling her that it was the profit of her share;" that the plaintiff, who was a minor at the time of her husband's death, was under the influence of Basdeo Sahai, who was her husband's elder brother, and used to obey Basdeo Sahai's orders; that the plaintiff was an illiterate and pardanashin woman and was not able to comprehend business matters and the nature of her rights and was unable to safeguard them; that when Basdeo Sahai died on 25 August 1927, his minor son, Rajendra Behari Lal--the defendant of the second party--bocame the sole owner of Basdeo Sahai's half share in the property; that the creditors of Basdeo Sahai "got an opportunity" and, colluding with defendant second party and with Mt. Nathia Kuer, fraudulently tried to misappropriate the property of the plaintiff as well and got certain sale deeds and deeds of transfer unlawfully executed in their favour in respect of the property belonging to her (the plaintiff) without her knowledge and information of which she came to know recently;