DAWLAT Vs. NAGORAO

JUDGEMENT

(1.) 1. This is an appeal by the plaintiff against the dismissal of his claim by both the Courts below. The plaintiff claims possession of the field in dispute on the basis of a sale-deed executed in his favour on 5th June 1919 (Ex. P-5) by one Deoman. His case is , that his vendor succeeded to the field as an heir to his wife Mt. Reni who died in June 1916. Mt. Reni in her turn got the field from the Defendant No. 1 (Gangoo), her mother, by means of a document dated 5th June 1909 (Ex. P-1), in consideration of her undertaking to pay Rs. 50 annually to her for maintenance during her lifetime, The plaintiff asserts that Mt. Reni was an absolute owner of the field by virtue of the deed (Ex. P-1). That the Defendant No. 1 without any right took forcible possession of the land and was about to remove the crops standing on the land. The suit is therefore one for possession and also for injunction to restrain the defendant from removing the crops. The Defendants Nos. 2 and 3 were impleaded as co-defendants on the ground that they were lessees of Defendant No, 1 and had been helping the latter to keep the plaintiff out of possession. The Defendant No. 1, while admitting the execution of the document dated the 5th June 1909 (Ex. P-1), con-tended amongst other things that the field belonged to her husband Narain and she herself had a widow's interest therein. She stated that besides Mt. Reni she had another daughter by name Saru. That besides the field in suit she inherited one house and two other fields situated at mouza Uprai; that she had reserved to herself a house and one field No. 69, and relinquished only one field in suit to her daughter Reni, and not the whole inheritance. That the relinquishment not being of the whole of the property, and not being in favour of both the daughters was not valid and therefore Reni could not obtain absolute: interest under the document and, in any case, her right to succeed to the estate in case Reni predeceased her could not pass under the said deed. That the property therefore after Reni's death reverted to her as the heir of her husband. The alleged sale by Deoman, and the alleged dispossession, as also the extent of the net income as stated by the plaintiff were denied. The plaintiff in his reply admitted that Defendant; No. 1 had another daughter by name Saru, but contended that Defendant No. 1 surrendered her whole interest in favour of her two daughters Reni and Saru and that Defendant No. 1 did not keep to herself any field or other property . And that even if she had kept any for herself it could not have invalidated the relinquishment. It was urged that it was not open to Defendant No. 1 to question her own act. It was asserted that Reni had absolute interest in the property and that Deoman was her law full heir and therefore had a right to transfer the field in suit to plaintiff. It will thus be seen that the plaintiff's title to the land in suit hinges upon the decision of the question whether the interest created in favour of Reni by the document dated 5th June 1909 was an absolute or a limited one. The Court of first instance dismissed the suit on the ground that the daughter Reni, having predeceased the mother, could not become a fresh stock of descent as the property was not the stridhan property of the daughter and must therefore revert to the heir of the last male holder, i. e., to Defendant No. 1.

(2.) SOME of the points were left undecided. On appeal the case was remanded for decision of the points left undecided and of some additional issues. The finding relevant to the decision of this 2nd appeal as given after remand are that the document dated 5th June 1909 (Ex. P-1) executed in favour of Reni could not be regarded as surrender of the widow's estate by Defendant No. 1, because it did not relate to the entire estate held by her, and was not in favour of the entire body of the next reversionary heirs. That even if the document (Ex. P-1) in favour of Rani and the similar one in favour of Saru (which is not before us) be regarded as together constituting one transaction still Survey No. 69 and the house not having been included in them, the transaction could not operate as a surrender of the whole of the inheritance so as to accelerate the succession in favour of the daughters. That the document at the most was a gift by a widow and as such could not be valid under Hindu Law,

(3.) SINCE the filing of this appeal Mt. Gangoo, Defendant No. 1, died, and in her place Nagorao, her nephew, has been substituted as Respondent No. 1. Before me it is contended that the document dated 5th June 1909 (Ex. P-1), which is styled a " Farkat," is either a surrender or an alienation for consideration. That reading Ex. P-1 along with Ex. P-9 (which is an extract from the Record of Rights and which mentions that a similar document in respect of Field No. 91 was executed in favour of Saru on 5th June 1909) the whole transaction amounts to an out and out surrender of the entire inheritance in favour of the defendant's reversionary heirs, i. e., of both the daughters. That under the Bombay School of Hindu Law applicable to Berar daughters take absolute interest in the inheritance. That the property was therefore stridhan in the hands of Mt. Reni and passed to her husband as such. That treating it as an alienation it was for consideration and as such was binding on Defendant No. 1 for her lifetime at any rate, and that if the relief be granted on the basis of the facts as they existed at the date of the suit, the plaintiff was. entitled to a decree as prayed for.