PARBATI KUER Vs. BAIJNATH PRASAD NARAIN SINGH

JUDGEMENT

(1.) The suit out of which this appeal arises relates to the properties of one Raghubans Narayan Singh who died in 1886, without any son, and was succeeded by his two-widows, Deo Murat Kuer and Birita Kuer. Deo Murat Kuer had two daughters, Bhagwat Kuer and Asturan Kuer, both being issueless. Birita Kuer had no issue. Mt. Deo Murat Kuer is dead, but. Birita Kuer is still alive. It is an admitted fact that the two widows came to some arrangement by which each took separate possession of a moiety of the estate of their husband with an understanding that each would have an absolute right unfettered by the other in the share which she got. In other words, instead of having a joint estate, they held, it in severalty. According to the plaintiffs there was also an oral agreement between them that the One would riot claim the right of survivorship in that portion of the estate which was held by the other. It seems that before her death Deo Murat Kuer, by a deed of gift, dated 19 April 1901, made a gift of some, if not of all the properties which she was in possession of, to her second daughter Asturan Kuer. This, as it appears, was done with the consent of the other daughter Mt. Bhagwat Kuer who was herself very rich through her husband. In this way Asturan Kuer came in possession of at least some of the properties of her father which were being separately held by her mother Deo Murat Kuer. Deo Murat died in 1916, and her co-widow does not seem to have claimed any of the properties in her possession on the ground of survivorship.

(2.) If there was any property which was not covered by the deed of gift, it was taken by her daughter Asturan Kuer. Asturan Kuer died on 16 December 1928, and a few days before her death, namely, on 12 December 1928, she executed a deed of absolute sale in respect of certain properties in favour of the appellant Dulhin Parbati Kuer. According to the plaintiffs this deed was for the benefit of her husband, defendant 1 Kumar Raghbe Surendra Sahi. This deed is the subject- matter of the present litigation. The plaintiffs, who are the two grandsons of Brij Bihari Singh, a brother of Brij Lal Singh, the father of Raghubans Narayan Singh, have instituted the present suit for recovery of possession of the properties covered by the deed of sale on the ground that they appertain to the estate of Kaghubans Narayan Singh and that they (plaintiffs) succeeded to them on the death of Asturan Kuer as the next reversioners of Raghubans Narayan Singh. They have characterised the deed of sale as fabricated, illegal and void. The plaintiffs case is that as by virtue of the mutual arrangement between the two widows of Raghubans Narayan Singh each gave up the right of survivorship in the share held by the other, on the death of one her share was to be dealt with as if the other did not "exist and therefore on the death of Deo Murat Kuer her daughter, Asturan Kuer, continued in possession of her properties as an heiress of her father, the other daughter Bhagwat Kuer raising no objection. They claim that in respect of that property succession opened on the death of Asturan Kuer and that the plaintiffs as the next heirs to Raghubans Narayan Singh have succeeded to those properties. They, therefore, seek possession of them by setting aside the deed of absolute sale executed by Asturan Kuer. They pray in the alternative that if for any reason the Court be of opinion that possession could not be decreed to them on account of Birita Kuer being alive, then it be declared that the deed of absolute sale, dated 12 December 1918, executed by Asturan Kuer in favour of defendant 2, was illegal and void and was ineffectual against the reversionary heirs to the estate of Raghubans Narayan Singh and a declaratory decree to that effect be passed. The learned Subordinate Judge has decreed the suit, holding that on the death of Asturan Kuer the plaintiffs were entitled to the immediate possession of that part of the estate of Raghubans Narayan Singh which was being held by one of his widows Deo Murat Kuer. He has held the deed of sale to be genuine and executed for love and affection, that no cash consideration passed and that it was in fact a deed of gift. The claim for mesne profits prior to institution of the suit was dismissed on the ground that the plaintiffs did not claim any specific sum. Defendant 2 has preferred this appeal. There is a cross-objection on behalf of the plaintiff-respondents which is directed against the finding of the learned Subordinate Judge that the deed of absolute sale was a genuine document and against the dismissal of the claim for mesne profits for the period prior to institution of the suit.

(3.) Only two points have been urged before us in appeal. One is that the plaintiffs are not entitled to immediate possession of any portion of the estate of Raghubans Narayan Singh, as one of the widows, Birita Kuer, is sitll living, and that the succession to the estate of Raghubans Narayan Singh has not opened. The only decree which the plaintiffs can get is a declaration that the deed of absolute sale would not be binding upon the reversioners of Raghubans Narayan Singh when the succession opens. The second point is that a portion of one of the villages in suit, namely, three annas 11 gandas 2 kauris 2 karants of Khosepur, tauzi No. 11374/6 was not a part of the estate of Raghubans Narayan Singh and was the personal property of Asturan Kuer and the plaintiffs are not entitled "to any relief in respect of it.