LALA NAND LAL Vs. SUNDER LAL

JUDGEMENT

(1.) This is a first appeal by the plaintiff Nand Lal whose suit for possession of a house and a shop in the town of Etawah has been dismissed. The property in Suit admittedly belonged originally to one Mangal Sen. A short pedigree showing the relationship of the plaintiff and defendants 1 to 4 will be useful: It will be noted that the plaintiff is the daughter's grandson of Mangal Sen, deceased, while defendants 1 to 4 are the brother and nephews of Mt. Meria widow of Chhedi Lal, son of Mangal Sen, who admittedly predeceased his father. The remaining defendants are Mt. Chimna Kunwar to whom Sundar Lal is said to have sold a portion of the property. Defendant 6 is the daughter's son of one Ram Dayal who obtained a money decree in Suit No. 40 of 1923 against defendants 1 to 4 and in execution on 30 January 1934 purchased the properties in suit as being the properties of defendants 1 to 4. He subsequently on 30 October 1934, executed a deed of gift in favour of his grandson Ram Gopal. Defendant 8 claims to be the adoptive son of the said Ram Dayal, while defendant 7 Mt. Mahraj Kunwar was Ram Dayal's widow.

(2.) It was the plaintiff's case that Mangal Sen died as far back as the 80's of the last century, that the deceased's son Chhedi Lal and daughter Mt. Janki having died during the life-time of their father the two widows Mt. Rani and Mt. Mithani entered into possession of his property with a widow's estate and that after some time Mt. Rani having died Mt. Mithani was left in sole possession. On 27th November 1919, Mt. Mithani executed a deed of surrender in favour of Thakur Prasad son of Mt. Janki, thereby accelerating the succession of Thakur Prasad to the property. Thakur Prasad, it is said, died in 1921, leaving the plaintiff Nand Lal as sole owner of the property; but at that time the plaintiff was a minor under the de facto guardianship of his father's step-brother Babu Ram son of Jagannath Prasad husband of Mt. Janki by another wife. On 27 October 1921, two documents were executed. One of these was by Babu Earn, step-brother of Thakur Prasad, who purported to execute it in the capacity of guardian of Nand Lal plaintiff, while the other was executed in favour of Nand Lal plaintiff by Mt. Meria. This latter deed was a deed of relinquishment in respect of the whole of the property of Mangal Sen mentioning the property in detail and was evidently intended to serve as a kind of guarantee that Mt. Meria had no title to any portion of the estate of Mangal Sen. The document executed by Babu Ram is a document described as a "tamliknama" in favour of Mt. Meria and one of the two main issues in the present case is as to the interpretation of that document. On behalf of the plaintiff it was contended that the property in suit was given into the possession of Mt. Meria for her livelihood, maintenance and residence for her life to enable her to reside in it so long as she might live and appropriate its profits towards her maintenance (para. 7 of the plaint). The plaintiff thus contended that on the death of Mt. Meria he was entitled to possession of the houses which had been the subject of the tamliknama.

(3.) On 10 April 1923 about a year before her death Mt. Meria executed a will in respect of those properties which were mentioned in the tamliknama in favour of the three sons of Sundar Lal. Sometime in the same year Ram Dayal obtained a decree aganist Sundar Lal and the legatees and under this decree ha brought the property which had been devised to Sundar Lai's sons to sale on 30 January 1934. That sale was confirmed on 1 May 1937, and possession was obtained by Ram Gopal, daughter's son of Ram Dayal, on 27 October 1937. The main defence taken was that the property in question was given to Mt. Meria as an absolute owner because she had relinquished her life interest in the entire property of Mangal Sen. The second main plea taken was that the suit was barred by limitation. The learned civil Judge framed a number of issues but he dealt with the questions which arise in connexion with the tamliknama, namely, issue (1), "Has the plaintiff right to sue?" and Issue (3), "Whether the plaintiff is the owner of the property?" simultaneously. He has first interpreted the tamliknama and he had concluded that by this document Mt. Meria was not the absolute owner of the property but in any case he proceeded to rely upon a passage in Gour's Hindu Code, 4 Edn., 1938, Section 364, Clause (4) at p. 1181, for the proposition that property given for the purpose of or in lieu of maintenance constitutes a woman's stridhan. Hence he took the view that she was entitled to dispose of this property by will. He drew the inference that it was the sons of Sundar Lal who were the owners of the property having obtained it under the will of Mt. Meria and therefore the plaintiff was not the owner of the property and had no right of suit.