LATUR RAI Vs. BHAGWAN DAS

JUDGEMENT

(1.) The suit out of which this appeal has arisen was instituted by the appellant Keshwar Rai and his cousin Latur Rai (now dead) for a declaration that certain deeds of transfer executed by Mt. Laruan, defendant 5 a Hindu widow, be declared void and possession of the properties conveyed by those deeds be delivered to them, or, in the alternative, a declaration be made that those transfers would not be binding upon them on the death of the widow they being the next reversioners of her husband.

(2.) There were three brothers, Bhaju, Kishun and Bishun. Bhaju had a son, Latur, who was plaintiff 1 and who died during the pendency of the present appeal. Kishun also had a son, Keshwar, plaintiff 2 who is the sole appellant before us. Bishun died childless leaving two widows, Usri and Laruan (defendant 5). Usri died in 1914. Laruan executed three deeds in respect of some of the properties which are the subject-matter of the present suit. One was a deed of sale dated 26 July 1918 in respect of four annas share of tauzi 20884 of village Imadpur in favour of defendant 1. By a second deed dated 4 September 1928, she purported to dedicate the remaining twelve annas of this tauzi in favour of the idol, defendant 2 under the Shebaitship of defendant 1. By a third deed dated 5 September 1928, she transferred 17 katas of some milkana land to her sister's husband, defendant 3. These are the three deeds which the two plaintiffs sought to avoid. The plaintiff's case was that Kishun, the father of plaintiff 2, and Bishun the husband of defendant 5, were joint: therefore nothing was inherited either by Usri or Laruah and the deeds were inoperative and plaintiff 2, Keshwar son of Kishun got all the properties by survivorship and he claimed immediate possession of the properties. There was however, as I have said, an alternative prayer that in case it be found that Keshwar, the plaintiff 2 was not entitled to immediate possession, a declaration be made that the alienations by Laruan would not on her death be binding upon the plaintiffs, the reversioners of her husband.

(3.) The trial Court gave the plaintiffs a modified decree in respect of the third deed, namely, the sale of 17 kathas of malikana land in favour of defendant 3. It held that Keshwar was not joint with Bishun, and the sale of this land not being for legal necessity, would not be binding on the plaintiffs after the death of Laruan. With regard to the other two alienations, the suit was dismissed. In respect of the four annas share of Imadpur, the learned Munsif found that two annas of it was acquired by the two widows themselves under a private sale and the remaining two annas was also acquired by them in execution of a mortgage decree, the mortgage being in favour of Bishun, their husband. As it was admitted that the parties were governed by the Mithila law under which the widows took an absolute estate, in the movable properties of their husband, the learned Munsif held that the money and the mortgage debt were absolutely vested in them; and therefore the properties (4 annas of the tauzi) which they acquired out of the moveable properties, namely the money, belonged to them absolutely. Therefore the deed in respect of the four annas was valid and could not be questioned by the reversioners. Regarding the dedication of the twelve annas share of thetauzi in favour of the idol, it is to be noted that according to the recital in the deed and the case stated in the written statement of defendant 2 the real dedicationwas by Bishun himself who was a devotee of the asthal and the mahant, namely defendant 1, was his spiritual guru and the lady simply completed the dedication by executing a deed.