MT MASEETUNNISA Vs. MAHESH CHANDER

JUDGEMENT

(1.) This is an appeal by defendant l, Mt. Masitunnissa, arising out of a suit for a declaration that the sale made by Mt. Renka Kuer on 28 March 1938 in her favour is not binding upon the plaintiffs. The relationship of the parties to this litigation, barring the appellant, who is a stranger purchaser, will appear from the pedigree set forth below:

(2.) It appears that Khader Mal was a very substantial man and he left a considerable fortune on his death. Mt. Paran Kuer made a will on 1 November 1911 in favour of her three daughters in respect of a number of properties including a two biswansi odd share, which she said, she had inherited from her husband, and a two biswa odd share which she claimed to have purchased from a man named Zahir Uddin. Mt. Paran Kuer died in 1912 and, soon after, Mt. Renka Kuer brought a suit against her two sisters, Jamna Kuer and Durga Kuer for possession of the entire estate. She laid this claim on the allegation that she was the only unmarried daughter among the three daughters of Paran Kuer and that the entire estate, was the estate of her father, Khader Mal, and she alone was therefore entitled to it in preference to her two sisters. The suit was dismissed by the learned Subordinate Judge on a finding that the claim was barred by limitation. On appeal, a Bench of this Court, by its judgment of 31 July 1917 set aside the decree of the learned Subordinate Judge and decreed the suit with respect to a portion of the property. This Court divided the property into two sets, property (a) and property (b). The High Court took the view that Mt. Renka Kuer, as the unmarried daughter of Khader Mal, was entitled to the entire estate of Khader Mal, that is, the property mentioned in list (a) appended to the plaint. With regard to the property (b) it held that that was the stridhan property of the lady, Mt. Paran Kuer and she had devised it equally in favour of her three daughters and the plaintiff was therefore entitled to a one-third out of that list. After the decision of the High Court, Mt. Renka Kuer remained in possession of the entire property which was treated by the High Court as the property belonging to her father and, of one-third of the share which was treated by it as the stridhan of Mt. Paran Kuer. About August 1936 Mt. Jamna Kuer sold her one-third share out of the property in list (b) to Mt. Masitunnissa. Mt. Renka Kuer then brought a suit for preemption, Suit No. 67 of 1937. The litigation ended in a compromise on 16 August 1937. The terms of the compromise are somewhat strange. Renka Kuer went to Court to bring back to the family the property lost to it by the conduct of Jamna but instead of recovering the lost property she lost even her, own share which had been decreed to her by the High Court, with the result that, on 28 March 1938 Renka Kuer sold her own share for a sum of Rs. 1577-8-0 to Mt. Masitunnissa, the defendant-appellant before us. As a result of this compromise Mt. Masitunnissa retained the share which had passed to her from Mt. Jamna Kuer and also acquired the share of Mt. Renka Kuer.

(3.) The present suit was brought in 1939 by the three sons of Mt. Renka Kuer, Mahesh Chander, Kailash Chander and Harish Chander, for a declaration that the sale deed of 28 March 1938 executed by their mother was not binding upon them, inasmuch as their mother had only a life interest in the entire property and the sale was not justified by legal necessity. The learned Munsif framed a number of issues and finally dismissed the suit on the ground, principally, that, in the lifetime of Mt. Jamna Kuer and Mt. Renka Kuer the plaintiffs had no right to bring the suit. He also held that with regard to the property in dispute Mt. Renka Kuer acquired from her mother an absolute estate and the plaintiffs could not challenge the sale.