SALAHUDDIN HYDER KHAN Vs. DHANOO LAL CHOUDHARY

JUDGEMENT

(1.) This is an application in revision relating to a court-fee matter. The petitioners are sons of one Raja Muhammad Yakub Khan, deceased, proprietor of what is commonly known as the Persouni Raj Estate. The allegation is that the ancestors of the petitioners were originally Hindus, but were converted to Islam; they, however, continued to be governed by the Mitakshara law of coparcenary. It is not necessary at this stage to consider how far this allegation is correct. The petitioners further alleged that their father was a man of immoral habits and was addicted to drinking wine, taking bhang, opium, etc. He borrowed money to satisfy his immoral and vicious habit3, and executed several mortgage bonds and two sale-deeds for the purpose, all relating to the joint family properties mentioned in Schs. A, B, C and D of the plaint. On the basis of the mortgage bonds, decrees were obtained, and in execution of the decrees the properties were sold. The petitioners therefore brought the suit out of which this application has arisen, and asked for the following reliefs: (a) That it may be adjudged by Court that the mortgage bonds dated 10 September 1915, 9 March 1918, (in favour of defendants 1 to 8) and 10 September 1915, 5 August 1919 and 14 April 1921 (in favour of defendants 9 to 14) and mortgage bond dated 13 January 1928 and kebala dated 13 January 1928, (in favour of defendants 15 to 24) and 23 March 1911, (in favour of defendants 15 to 37) executed by Raja Mohammad Yakub Khan, deceased, father of the plaintiffs were for illegal and immoral purposes and are not binding on the plaintiffs and the decrees and the sales thereunder as also the sales under the kebalas dated 23 Maroh 1911 and 13th, January 1928, are null and void and not binding on the plaintiffs who are consequently entitled to recover possession of those properties. (b) The possession of the properties given in the schedules below may be awarded to the plaintiffs by ousting defendants first party therefrom. c) That the cost of the suit be awarded to the plaintiffs. d) Any other relief to which the plaintiffs may be deemed entitled be awarded to them.

(2.) The petitioners paid court-fees on twenty times the Government revenue payable for the properties in suit, as on a suit for possession under Section 7 (v), Court-fees Act. The Court below has held that the suit properly comes under Section 7(iv)(e), Court-fees Act, and has demanded court-fees on the market value of the properties in suit. It is against this order of the learned Subordinate Judge that the present application is directed. It has firstly been contended before us that the learned Subordinate Judge is wrong in holding that the suit comes under Section 7(iv) (c), Court-fees Act. It is urged that the petitioners are entitled to treat all the alienations as null and void, and can merely ask for possession without the necessity of having a declaration at all. Reliance has been placed for this contention on the Full Bench case in Ramkhelawan Sahu V/s. Surendra Sahi A. I. R. 1938 Pat. 22. Reference has also been made to the decision of their Lordships of the Judicial Committee in Bijoy Gopal Mukherji V/s. Krishna Mahishi Debi (07) 34 Cal. 329, where the following observations occur: ...A Hindu widow is not a tenant for life, but is owner of her husband's property subject to certain restrictions on alienation and subject to its devolving upon her husband's heirs upon her death. But she may alienate it subject to certain conditions being complied with. Her alienation is not therefore absolutely void, but it is prima facie voidable at the election of the reversionary heir. He may think fit to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any Court, and he shows his election, to do the latter by commencing an action to recover possession of the property. There is, in fact, nothing for the Court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir.

(3.) In my opinion, the aforesaid contention, raised on behalf of the petitioners, is not correct so far as the properties which have been sold in execution of mortgage decrees are concerned. The true test in such cases has been laid down in the Full Bench decision in Ram Sumran Prasad V/s. Gobind <JGN>Das</JGN> A. I. R. 1922 Pat. 615 in which the plaintiffs as reversionary heirs instituted a suit to recover possession of certain properties which had been the subject-matter of a gift by a widow. It was observed in that case that the real question for determination was whether or not the plaintiff could obtain in the suit a decree for possession without first seeking a declaration that the gift to the defendant by the widow was not binding on him. It was stated therein that if the gift was binding against the reversioner until it was set aside by a decree of the Court, then it was essential that the plaintiff should first ask for a declaration setting it aside. The case in Ram Sumran Prasad v. Gobind <JGN>Das</JGN> A. I. R. 1922 Pat. 615 has not been overruled by the later Full Bench decision in Ramkhelawan Sahu V/s. Surendra Sahi A. I. R. 1938 Pat. 22. This later decision related to two cases in both of which it was found that no declaration was sought for or required. The facts show that in one of the cases the plaintiff claimed as the nearest agnate and heir of the last male owner, and treated the gift by the widow as null and void. In the other case, the plaintiff claimed as heir of one Rani Rajbansi Kuer certain properties set forth in the schedule, which were stated to be the absolute stridhan properties of Rani Rajbansi Kuer. In none of the two cases was it necessary for the plaintiff to ask for a declaration before he could get possession. The position is different in a case where the plaintiff claims relief to which he is not entitled until some decree or alienation of property, which stands in his way, has been avoided.