MT CHAULI Vs. MTMEGHOO

JUDGEMENT

(1.) These appeals arise out of a suit instituted by Mt. Chauli in order to recover possession of three properties, an enclosed piece of land known as a gher with the buildings thereon, the whole of the village of Somli and the half of an area of 518 bighas 12 biswas in the village of Nandpur, which, we understand, represents a share of 5 biswas out of 20 biswas in this village. The property in suit admittedly belonged at one time to Amolak Ram, a Vaish Agarwal Saraogi Jain, who died in the year 1880 leaving him surviving a widow, Mt. Bir Kunwar, and three daughters, Mt. Permeshwari, Mt. Lachhmi and Mt. Barfi. Mt. Bir Kunwar died in 1880, Mt. Parmeshwari in 1905, Mt. Laehhmi in 1910 and Mt. Barfi in 1922. The plaintiff, Mt. Chauli, is the daughter of Mt. Lachhmi who also left her surviving two sons, Lalta Prasad and Durga Prasad. The plaintiff alleged that Mt. Bir Kunwar became the absolute owner of the properties in suit on the death of her husband, Amolak Ram, in accordance with the law or custom applicable to Jains of his caste and that the three daughters of Mt. Bir Kunwar succeeded to a joint life interest in the property on the death of Mt. Bir Kunwar; She further alleged that the joint life interest of the daughters came to an end on the death of Mt. Barfi and that she, that is, the plaintiff, thereupon became the owner of the property. The properties had been transferred by the three daughters of Amolak Ram to various persons between the years 1882 and 1894 and Mt. Ohauli, therefore, sought to recover possession together with mesne profits. The ghor was transferred to the predecessors-in-interest of Jagat Prasad, defendant 4, Sumer Chand defendant 5 and Purdaman Kumar defendant 6. The village of Somli was transferred to the predecessor-in-interest of Mt. Munirunnisa, defendant 7, who has since died and is now represented by Nasir Hasan. The share in the village of Nandpur was transferred to the predecessor-in-interest of Mt. Megho defendant 1, of Arah Das, defendant 2, of Nanak Chand, defendant 3, who has since died, and is now represented by Bishambhar Das, Arah Das, Bijai Kumar, Raj Kumar, Deo Kumar and Abhir Madan Kumar and of Mt. Madna, defendant 8.

(2.) The learned Judge of the lower Court found that the share in Nandpur alone was the self-acquired property of Amolak Ram and that the two other properties partly descended to him from his father, Diwan Singh and were partly purchased by him from ancestral funds. As the plaintiff did not suggest, and does not now suggest, that a Jain widow acquires an absolute interest in ancestral property, the learned Judge dismissed the suit for the possession of the gher and of the village of Somli. He found that the share in Nandpur was acquired by Amolak Ram himself but that two-thirds of the village had been transferred by Amolak Ram's daughters for legal necessity and he consequently gave a decree for the recovery of possession of one-third of the Nandpur property together with a sum of Rs. 600 as mesne profits for the three years immediately preceding the suit. Mt. Chauli appealed against the decree. Her appeal is No. 226 of 1937. Arah Das and Nanak Chand since deceased filed a cross appeal. Their appeal is No. 353 of 1937. The two appeals came up for hearing before a bench of the Court consisting of Thorn, C.J. and Ganga Nath, J. They passed an order remitting certain issues for decision and in the course of the order expressed their opinions or recorded findings upon certain of the points in issue. When the learned Judge of the lower Court submitted his findings on the remitted issues, the appeals came before another Bench consisting of Collister and Bajpai, JJ. The question then arose whether the opinions expressed or findings recorded in the order remitting issues could be questioned before the later bench. This question was referred to a Full Bench of the Court and the finding was that the second bench had an unfettered discretion in the matter. The Full Bench held that the order remitting issues was an order of the Court and not of the individual Judges constituting the Bench. It also held that the opinions expressed or findings recorded were in essence tentative as they did not lead to any decree or order except the order remitting issues; the Judges of the second Bench were, therefore, entitled either to say that they would not re- open matters which had been fully argued before the Court and upon which the Court had recorded findings or expressed opinions after due consideration, or, on the other hand, if it appeared to them that there had been some obvious mistake to hold that they were not compelled when passing their final decree to rely upon those findings and opinions, they could re-consider the questions if they so choose just as they might have re-considered questions on which they themselves personally had expressed opinions or recorded findings in the course of the proceedings before finally passing a decree.

(3.) After the decision of the Full Bench the appeals have come before us for hearing. We may say at once that it was alleged in the Court below that Amolak Ram was not a Jain and that Mt. Chauli was not the daughter of Mt. Lachhmi, but on both these points the finding of the learned Judge was in favour of the plaintiff. This finding does not seem to have been contested when, the appeals were first argued and, our attention has not been drawn to any evidence which would justify us in holding that the learned Judge was wrong. These two points, therefore, require no further consideration. There cannot be any doubt now that the self- acquired property of a Jain Agarwal, if it passes to his widow on his death, is transferable by her at her pleasure. We need refer only to the case in Sheo Singh Rai V/s. Dakho ( 75-77) 1 All. 688 which has been followed in Shimbhu Nath v. Gayan Chand ( 94) 16 All. 379, Nikram Singh V/s. Sriniwas and Pahar Singh V/s. Bijai Bahadur Singh . The rule is now so well established that it is, in our judgment, unnecessary to prove it as a custom in every case.