SHEOSAHAI Vs. SYED NURUL HOSSEIN

JUDGEMENT

(1.) THE suit in this appeal was brought by the Respondent against the wife of the Appellant Syed Nurul Hossein, Mussummat Bibi Saidan, who died pending the appeal, and is represented by the present Appellants. The plaint prayed for the determination and adjudication of the right of the Plaintiff to and for possession of mouza Bhada Khord, pergunnah Pachlakh, said to be acquired by Dwarka Lal, great-grandfather of the Plaintiff and Husband of Mussammat Parboil Koer, with his ancestral money. Dwarka Lal died in 1819, intestate and childless, leaving Parboil Koer his widow, who entered into possession of his estate. On the 30th of May, 1865, Parbati Koer, described as widow and Heiress of Babu Duarka Das deceased, executed a mokhtarnama, by which she appointed Parsotim Das, described therein as son of the late Juggernath Pershad deceased, and her own adopted son, her general mokhtar, with power to alienate or sell any 'moveable or immoveable properties for any consideration. On the 15th of May, 1868, Parsotim Das executed a deed of sale, by which, in consideration of Rs. 9575, he sold the whole of the mouza Bhada Khord to Mussummat Bibi Saidan, absolutely. He is described in the deed as "general mokhtar and executor under the will dated the 6th of June, 1853, and adopted son of Mussummat Parbati Koer, widow of Babu Dwarka Das deceased, by virtue of a general power of attorney," and the deed contains the following passage: "My client, the vendor, and her heirs and representatives, and I as mokhtar, who am the general mokhtar, adopted son, and executor under the will of the vendor, and my heirs and representatives have now no claim, right, demand, or contention in respect to the property sold and the said consideration money against the vendee and her heirs and representatives. I, as mokhtar, have made a general renunciation of the same. Such renunciation is legal and valid."

(2.) PARBATI Koer died on the 21st of June, 1879. The heir of Dwarka Lal, or Dwarka Das, as he was sometimes called, then entitled to succeed to his estate, was Lokenath, the grandson of Dindyal Ram, the paternal uncle of Dwarka Lal. Lokenath died on the 21st of September, 1881, leaving Parsotim Das, who was the grandson of Behari Lal his paternal uncle, and the Respondent and his five brothers, who were great-grandsons of Behari Lal, surviving him. On the death of Lokenath, a dispute arose between Parsotim and the Respondent and another person as to the right to succeed to his estate, the Respondent claiming to do so on the ground of Lokenath having brought him up as his son. Petitions for a certificate under Act 27 of 1860, were presented by the parties, and pending the decision of the case, a compromise was come to, which is stated in a petition to the Court, dated the 18th of February, 1882, of the Respondent and Parsotim. A division was thereby made of the estate, and the material part for the present suit is in the 4th paragraph. That states that Parsotim Das "has and shall have nothing to do with anything that may be acquired" by means of a suit which had been instituted by Lokenath to obtain possession of another mouza which had been sold, "or any other case instituted by virtue of the right of inheritance to the estate of Dwarka Lal, but that Sheosahai Lal, alias Matru Lal alone shall derive benefit or suffer losses from the same." The first Court properly decided that the Plaintiff was not the heir to Lokenath. They also held that he could not have any right, in consequence of the relinquishment of Parsotim Das in his favour, to recover possession of the property in dispute, on the ground that he executed all the documents relating to the alienation by Parbati Koer, that it was made with his full consent, and as the reversionary heir of her husband he could not sue to have it set aside and recover possession from the purchaser, and also that the relinquishment was collusive. The suit was accordingly dismissed.

(3.) THE learned Counsel for the Appellant took several objections to the judgment of the High Court. The first was founded upon the judgment of this Committee in Eshenchunder Singh v. Shamaohurn Bhutto and Others 11 Moore's Ind. Ap. Ca. 7, where it is said (p. 20) that the determinations in a cause should be founded upon a case either to be found in the pleadings or involved in or consistent with the case thereby made, and (p. 24) that the equities and ground of relief originally alleged and pleaded by the Plaintiff should not be departed from. Several cases were referred to as illustrating the application of this rule. Their Lordships fully affirm it, but the substance of the case in the plaint in this suit is that the sale by Parbati Koer was invalid beyond her interest in or power over the estate. The plaint, indeed, states that the Plaintiff was the heir of Lokenath, and so entitled to raise the question. He was not the heir, but it was proved that he had the right of the heir, and the Defendant was allowed to take the same objections as he might have taken if Parsotim had been the Plaintiff. Moreover, it may fairly be inferred from the judgment of the first Court that this objection was not taken at the hearing before it. If it had been, the plaint and the issues might and ought to have been amended. It is very unlikely, if it was taken and was overruled, that there would be no notice of it in the judgments of either of the lower Courts. Their Lordships are of opinion that there is no weight in this objection.