FATEH SINGH Vs. THAKUR RUKMINI RAMANJI MAHARAJ

JUDGEMENT

(1.) This second appeal raises certain questions regarding the position of a reversioner who has succeeded to immovable property on the death of a Hindu widow, in respect of an alienation by way of gift or endowment made by the said widow. The essential facts may be stated as follows. The property with which, we are concerned belonged to one Tulsi Ram, who died leaving a son, Daulat Ram. The latter died childless and was succeeded in the possession of the property, first by his own widow, Musammat Man Tumwar, and, afterwards, by his mother Musammat Munian, the widow of Tulsi Ram. On the 19 of April, 1905, Musammat Munian made a gift of certain immovable property in favour of the family idol, who is impleaded as the defendant in this suit, which is contested by Mahant Puran Das, the manager of the temple in which the idol is installed. At the time of this transfer the nearest reversioners to the estate of Daulat Ram were the grandsons of one Daya Nand, who was the own brother of Sukhdeo, the father of Tulsi Ram. On the 12 of May, 1905, two of these reversioners, by name Fateh Singh and Bandar, executed a document which has been referred to in the pleadings and arguments as a deed of relinquishment. The third reversioner, by name Duli Chand, instituted a suit, in the year 1907, claiming a declaration that the transfer effected in favour of the idol was not valid beyond the life-time of Musammat Munian and would not bind the reversioner or reversioners who might succeed to the estate on that lady's death. He obtained, after contest, a decree granting him the declaration sought for. It is not suggested that there was any kind of fraud or collusion in connection with the passing of this decree in favour of Duli Chand. Musammat Munian lived until the 12 of December, 1916. When she died the succession opened in favour of Fateh Singh and Duli Chand, Sundar having died in the interval. For some reason with which we are not concerned, Duli Chand has, up to the present, taken no effective steps to recover possession of any part of the property covered by the deed of gift of the 19 of April. 1905. The suit out of which this appeal arises was instituted by Fateh Singh the 31 of July, 1918. The plaintiff asserts that he is actually in possession of some of the property covered by the deed of gift of the 19 of April, 1905 but he claims to recover a one-half share of the remainder, admitting that the other half share has passed by inheritance to Duli Chand. The suit was resisted on various grounds, with two of which only we are now concerned. It was contended on behalf of the plaintiff that the decree in favour of Duli Chand in suit No. 163 of 1907 was conclusive as to the invalidity of the gift beyond the life-time of Musammat Munian, so that the court was bound to accept that decision and to decree the plaintiff's claim accordingly. On behalf of the defendant it was denied that the decree in favour of Duli Chand could operate as res judicata in favour of Fateh Singh in respect of any of the questions raised. It was further contended that, in any event, Fateh Singh was bound by the terms of his own deed of relinquishment of the 12 of May, 1905, and was, therefore, debarred from contesting the validity of the alienation.

(2.) The case was argued before a Bench of two Judges, by whom it was referred to a Full Bench in order that the questions of law raised might be finally determined.

(3.) The question regarding the effect of the decision in favour of Duli Chand in suit No. 163 of 1907 need no detain us long, indeed it was not argued before us. In the case of Kesho Prasad Singji V/s. Sheo Pargash Ojha (1921) I.L.R. 44 All. 19 it was held that, on the principles laid down by their Lordships of the Privy Council in Venkatanaryana Pillai V/s. Subbammal (1915) I.L.R. 38 Mad. 406 a decision in favour of one reversioner in a declaratory suit such as that brought by Duli Chand would ordinarily, in the absence of fraud or collusion, bind the whole body of reversioners. We are satisfied that we could have treated the judgment in favour of Duli Chand as conclusive in respect of all matters actually decided in that litigation. The point is not really material, so far as the result of the present appeal is concerned. By way of precaution, in order that the other point which we have to decide with respect to the deed of relinquishment of the 12 of May, 1905, might come before us as a definite question of law, clear of all possible controversy as to matters of fact, we remitted certain issues for further investigation by the lower appellate court. One result of this has been a finding that the gift made by Musammat Munian in favour of the defendant idol covered about two-thirds of the estate in the possession of the said donor as a Hindu widow. We have no doubt that such an alienation, for the purpose stated in this deed of gift, could not be justified per se and that the suit brought by Duli Chand was rightly decided.