GAURI BAI Vs. GAYA BAI

JUDGEMENT

(1.) THIS judgment: in this appeal by the plaintiffs Gauri Bai and others, will govern also the appeal by the defendant, Gaya Bai, against the same decree (S.A. No. 494 of 1925). The appeal of the plaintiffs is only against the decision that their claim to recover the occupancy holding is barred by time. It was pleaded by the defendant that Ram Asra sold this holding to Motilal in March 1921, with the consent of the landlord, and if that is true the claim is not only barred by time but untenable otherwise. There is no finding on this plea in the lower appellate Court, the learned Judge preferring to hold that the claim is otherwise time-barred, even if the plea is untrue. It is perhaps open to doubt whether time would begin to. run against the reversioners before the second marriage of Bati Bai, if Motilal took possession after the death of Ram Asra, and it is advisable to examine the evidence on the plea of sale by Ram Asra, in order to make sure that the question of law does arise before discussing it.

(2.) RAM Asra died on the 26th of June 1921, and his widow Bati Bai married again in May 1922. The defendant, Gaya Bai, stated in her pleadings that in March 1921, Ram Asra transferred the occupancy holding in question to Motilai in lieu of Rs. 300 due to him. It is beyond doubt that during the agricultural year 1921-22 Motilal was in possession of the holding and paid no rent for it to Ram Asra's widow, whether he was in possession for her or for himself. Deodhar Singh Kurmi (D. W. No. 1) is the brother and mukhtiyar of the lambardar of the patti in which the holding lies. He says he witnessed the alleged sale by Ram Asra, and took the rent for the year 1921-22 and the following year from Motilal and that for 1923-24 from his widow Gaya Bai, passing receipts to thorn as the tenants of the land.

(3.) IN the appeal by the defendant Gaya Bai we are first concerned with the matter of a surrender of the estate by Gauri Bai, after she had inherited a life-interest in it from her sou Ram Asra, so that it passed to Motilal who was then the next reversioner. This is ordinarily, but not quite correctly, called a surrender to " the next reversioner, though it might be said to be in his favour. The life-owner merely puts an end to her own interest, and the estate lies there to be taken by whosoever chooses and has a right to do so. The matter is not without importance as will be seen later. It was found in the first Court that Gauri Bai did orally make such a surrender of her interest in the estate in favour of Motilal, but the learned Subordinate Judge was of opinion that she retained so much of it as to make it invalid, as it was not an abandonment of her entire interest. In appeal the making of the surrender was apparently accepted as a fact, and the Court also accepted the proposition that if the surrender were otherwise valid the retention of small property like two houses and utensils would not make it invalid.