MOTI SHAH Vs. GHANDHARP SINGH

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for recovery of possession of 3 biswas 15 biswanis shara in village Pitipur and 2 biswas 8 kachwansis share in village Mulupura, which had been recorded in the name of Mt. Durga Kunwar, and for possession of 10 kachwansis share in village Pitipur which had been purchased at auction by the defendant against Mt. Tikam Kunwar, deceased. The allegations in the plaint were that the property belonged to Suraj Narayan, the last male owner, and on his death his widow, Mt. Tikam Kunwar, inherited it, but that Mt. Durga Kunwar's name was recorded over a half-share for maintenance and consolation.

(2.) On the death of Mt. Durga Kunwar, Mt. Tikam Kunwar, as well as the plaintiff, Gandharp Singh, and the defendant Moti Shah, put forward a claim to her share in the revenue Court and filed separate applications for mutation of names; that during the pendency of the mutation case, Mt. Tikam Kunwar executed a registered agreement dated the 21 of June 1918, and the plaintiff and the defendant, out of some policy or expediency, executed a contemporaneous agreement, according to which the property was divided in equal shares between the parties. The plaintiff alleged that Mt. Tikam Kunwar was the limited owner entitled to the estate, and that these proceedings and the agreements are in no way binding on the plaintiff He sought possession by avoidance of this agreement. As regards the 10-kach-wansis share sold at auction, his case was that only limited interest of Mt. Tikam Kunwar had been sold and he is entitled to this portion on the death of Mt. Tikam Kunwar as the next reversioner.

(3.) Moti Shah contested the claim mainly on the ground that the plaintiff was estopped from challenging the agreements executed in June 1918. He also put forward the plea that Mt. Durga Kunwar had been in adverse and proprietary possession of the property standing in her name, which had become her stridhan, and that under a Will she had made a bequest of that property in favour of the defendant. The learned Subordinate Judge has decreed the claim holding that the agreements in question did not create an estoppel against the plaintiff. He has held that there is nothing to show that the arrangement made by these agreements was to hold good for ever and was not intended to operate till the lifetime of Mt. Tikam Kunwar only. He has also thought that the transaction did not amount to an estoppel within the meaning of Section 115 of the Evidence Act, as it embodied a mere proposition of law, and lastly, that the agreement was not a family arrangement at all and did not constitute the recognition of any pre-existing title.