MT JAQRANI Vs. GAYA

JUDGEMENT

(1.) This is a defendants second appeal arising out of a declaratory suit instituted by the plaintiffs-respondents. The pedigree set up by the plainitiff-respondents which is to be found at p. 24 of the paper-book has been held to be proved by the lower appellate Court. Jageshar was the last male owner of the property in respect of which the suit which has given rise to this appeal was instituted. Defendant 1, Mt. Jagrani, is the widow and defendant 2, Mt. Dulra, is the daughter of Jageshar. Gaya Pande and Chhedi Pande, plaintiffs-respondents, are the next male reversioners of Jageshar. This finding of the lower appellate Court is one of fact and cannot be challenged in second appeal.

(2.) Mt. Jagrani executed a mortgage deed on 8 February 1912, in favour of one Deoki. On 21 June 1920 she executed a deed of gift in favour of Mt. Dulra and one Kamta, who is the son of Mt. Dulra's husband's brother. The plaintiffs- respondents instituted a suit to obtain a declaration that these two deeds were null and void as against them. So far as the deed of mortgage, dated 8 February 1912, is concerned, the lower appellate Court held that the claim of the plaintiffs for obtaining a declaration was not within limitation. This finding of the lower appellate Court has been challenged by the plaintiffs-respondents, who have filed cross-objections. I am of opinion that the decision of the lower appellate Court on this point is correct and there is no force in the cross-objection filed by the plaintiffs-respondents. The plaintiffs ought to have sued within a period of six years from the date on which the mortgage deed in suit was executed by Mt. Jagrani, as Art. 120. Limitation Act, is applicable to the case, and as this was not done, it was rightly held by the Court below that the suit, so far as this mortgage deed was concerned, was not within limitation.

(3.) The next question for consideration is whether the finding of the learned Subordinate Judge as regards the deed of gift of 1920 is correct. The learned Subordinate Judge has held that the deed of gift executed by Mt. Jagrani in favour of Mt. Dulra and Kamta. amounted to a surrender of her husband's estate to the next presumptive reversioner and therefore Mt. Jagrani should be taken to be civilly dead. He has come to the conclusion that the estate at the date of the suit was held in its entirety by Mt. Dulra and therefore the suit was governed by Article 125, Limitation Act. I am of opinion that the view taken by the learned Subordinate Judge that the deed of gift which Mt. Jagrani had executed in favour of her daughter and Kamta amounted to a surrender of her husband's estate is not correct. It was a transfer made by her in favour of Mt. Dulra and also in favour of Kamta who was a stranger. It cannot be said that it amounted to a surrender. In the deed of gift she did not say that she was surrendering the estate. The learned Subordinate Judge has relied on a ruling of the Calcutta High Court, reported in Abhoya Pada V/s. Ram Kinkar AIR 1926 Cal 228. The facts of that case were different. There a complete surrender had been made by the lady in favour of the next reversioner. The other persons, in whose favour the surrender was made, were also reversioners, but they were somewhat remote. In the case- before us the transfer is made in favour of Mt. Dulra her daughter, and also Kamta, who is a complete stranger. It is open to Kamta, if his claim, is challenged by Mt. Dulra in the lifetime of the donor, to say that he got the estate from the donor and so it cannot be said that there was a surrender in favour of Mt. Dulra. This being the case, the suit is governed by Art. 120, Limitation Act. The plaintiffs should have instituted a suit to obtain a declaration that the deed in favour of Mt. Dulra and Karnta was null and void against them within a period of six years. Art. 125 has no application to the case before us. I an) therefore of opinion that the claim of the plaintiffs was barred by limitation in respect of this deed of gift as well.