SHYAM NARAIN MISIR Vs. MANGAL PRASAD MISIR

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for redemption of a usufructuary mortgage of 1879. The plaintiffs claim to be the representatives of the mortgagor under a sale-deed, dated 13 September 1927, executed by Ram Narayan son of Mt. Bhagwanti, who was the daughter of Mt. Budna the mortgagor. The defendants, who are the representatives of the mortgagees, pleaded that the plaintiffs had no right of redemption left inasmuch as they had acquired proprietary title under the sale-deeds of 2 August, 1910, and 4 January 1927, executed by Ram Narayan previous to that in favour of the plaintiffs.

(2.) It appears that on the death of Mt. Budna, she was succeeded by two or three daughters, one of whom Mt. Bhagwanti died in 1904, another daughter having died earlier. On the death of Mt. Bhagwanti, the name of Ram Narayan was entered against a half-share in the estate, while the name of the other daughter, Mt. Akashi continued to remain recorded against the other half. In 1910, Ram Narayan sold that half-share in the property which was in his possession. Mt. Akashi was then alive and died much later in 1926. On her death, Ram. Narayan executed a second sale-deed on 4 September 1927, in which he acknowledged the validity of the previous sale-deed of 1910 and also transferred the remaining half-share to the same vendees. It was after this that the plaintiffs took the sale- deed from Ram Narayan. The lower appellate Court has held that the defendants vendees are perfectly protected and the plaintiffs as representatives of Ram Narayan are estopped from going behind the previous two transactions. On appeal a learned Judge of this Court has affirmed that decree, holding that Section 41 as well as Section 43, T.P. Act, are a bar to the claim so far as the half-share sold in 1910 is concerned. As regards the remaining half-share, the validity of the sale- deed of 1927 has to be accepted.

(3.) The learned advocate for the plaintiffs urges before us that Section 43, T.P. Act, cannot apply to a case where a person, who is a mere contingent reversioner, purports to transfer the property and then subsequently succeeds to it. The argument is that such an interpretation of Section 43 would be in conflict with Section 6(a) under which the chance of an heir-apparent succeeding to an estate cannot be transferred. He relies strongly on Bindeshwari Singh V/s. Har Narain Singh 1929 Oudh 185, and the case of Official Assignee of Madras V/s. Sampath Naidu 1933 Mad 795. These cases certainly support his contention; but they proceed on the authority of certain earlier cases which can be easily distinguished. The case of Sumsuddin Goolam Husein V/s. Abdul Husein Kalimuddin (1907) 31 Bom. L.R. 781, was one where the transferor had agreed to relinquish and release all her right, title and interest, present or future, by way of inheritance or otherwise in certain properties; Section 6(a) was clearly applicable and Section 43 could have no application.