M KISHAN LAL Vs. MOHAMMAD ISHAQ

JUDGEMENT

(1.) This is a plaintiff's second appeal arising out of a suit for declaration. The facts which have given rise to this appeal can briefly be stated as follows: One Mt. Ganga Devi was in possession of a certain share as a Hindu female to which she succeeded as such on the death of her mother. She obtained a decree on account of profits against Mohammad Ishaq, another co-sharer, for a sum of Rs. 101-11-4 from the Court of an Assistant Collector. There was an appeal against that decision with the result that Mt. Ganga Devi succeeded in obtaining a decree for Rs. 402- 14-9. Mohammad Ishaq preferred a second appeal to this Court with the result that the decree passed by the District Judge was set aside and that of the first Court restored. Before the decision in the second appeal preferred by Mohammad Ishaq was given, Mt. Ganga Devi had applied for execution and had actually realized from Mohammad a sum of Rs. 402-14-9, in accordance with the decree passed by the District Judge and which was under appeal. After Mohammad Ishaq had succeeded in second appeal before this Court, he made an application under Section 144, Civil P.C., for refund of the excess amount which has been realized by Mt. Ganga Devi. Mt. Ganga Devi died and so Mohammad Ishaq sought to execute his decree against the estate treating it as assets of Ganga Devi. It appears that on the death of Ganga Devi, three persons, Nathu Ram, Kewal Ram and Misri Lal, became entitled to the estate of Ganga Devi's father after her death. These three persons transferred their rights to the plaintiff.

(2.) The plaintiff made an application to the Court in which Mohammad Ishaq's petition under Section 144, Civil P.C., was pending, objecting to the prayer of Mohammad Ishaq, on the ground that the property in suit was not the property of Mt. Ganga Devi; but that his predecessors had gob possession over it as reversioners of Sarwan Lal and so the property was not liable for any claim which Mohammad Ishaq might have had against Mt. Ganga Devi or her heirs. The attempt of the plaintiff was unsuccessful and his objections were dismissed. Thereupon the plaintiff filed a regular suit for a declaration which has beer dismissed by the lower appellate Court, and he has come up to this Court in. second appeal. As regards the facts of the case there is no dispute between the parties. The only question which has-been agitated before me in this appeal is as to whether or no Mohammad Ishaq is entitled to realize the extra amount which Mt. Ganga Devi got from him by proceeding against the estate which went to the reversioners of Sarwan Lal on the death of Mt. Ganga Devi. Learned Counsel- appearing on behalf of the plaintiff appellant has contended before me that the predecessors of the plaintiff succeeded to the estate of Sarwan Lal, as his nearest male reversioners on the death of Mt. Ganga Devi, and not as heirs of Mt. Ganga Devi and therefore they are not liable for re-payment of any money which Mt. Ganga Devi might have realised in excess of what was due to her. He further contended that the estate, to which the reversioners succeeded in their reversionary right is also not liable for any such claim. I proceed to consider this question.

(3.) It was argued before me by learned Counsel for appellant and the point is not disputed by the opposite party that according to Hindu law, as it stands now, a Hindu female in possession of an estate for her life only has an absolute control over the income and can dispose of it in any manner she likes. If she leaves behind any such income, the question as to whether the same should be treated as an accretion to the estate or should go to her heirs, will depend upon the circumstances and facts of each case. In the case before me, however, we are not called upon to decide any such question. Here what I have to see is whether a co- sharer, in an undivided village, who has been made under a decree of a Court to pay a sum in excess of the amount due to a Hindu female holding the position of a co-sharer is entitled to get back the excess amount. In my opinion, the view taken by the learned District Judge is correct and must therefore, be affirmed. When a Hindu female who has possession over an estate for her life, sues a co-sharer for profits, she does so in representative capacity. She has no personal claim whatsoever against any of the co-sharers in the village in which she is a co-sharer. A Hindu widow not in possession of the estate would not be able to recover anything by way of profits from another co-sharer. Her claim would be defeated on the ground that she is not a co-sharer in the village and is therefore, incompetent to sue for profits.