HAJI MOHAMMAD SAID KHAN Vs. KUNWAR DARSHAN SINGH

JUDGEMENT

(1.) This is a defendant's appeal, arising out of a suit for recovery of possession of a house brought by the reversioners of Naik Rai Singh, who was the last male owner. He died some time in 1876 leaving two widows; one of whom died in 1890 and the other, Mt. Sundar Kunwar, died in 1917. In 1903 Hori Singh was the next reversioner, who would have succeeded to the estate if Mt. Sundar Kunwar had died then. On the 21 September 1903 she executed a deed of transfer in favour of Hori Singh, purporting to surrender all her interest in the house in dispute. On the 22 September, 1903 a sale-deed was executed by Hori Singh in favour of the defendant-appellant, Haji Mohammad Said Khan, and both these documents were presented for registration simultaneously between 1 and 2 o clock on the 22nd September, and both were registered consecutively. On the death of the widow the plaintiffs, claiming to be the next reversioners, brought this suit for recovery of possession. The pedigree on which they relied was a very long one and is printed at p. 4 of our paper-book. It must be said to the credit of the defendant that he did not choose frivolously to deny this long pedigree, but admitted it. The written statement filed on his behalf, which obviously is the result of legal advice obtained by him, is by no means artistically drawn. The pleas, if examined strictly, amount to these, namely, that Mt. Sundar Kunwar had relinquished all her rights and interest in the property in favour of Hori Singh and had therefore extinguished her widow's estate, with the result that Hori Singh became the permanent owner, and that, as such, he was perfectly competent to transfer the property. Para. 4 was curiously worded and it raised the plea that the transfer by Mt. Sundar Kunwar and the sale by Hori Singh to the defendant amounted to an alienation for consideration by the widow with the consent of the reversioner. We have referred to these pleas because much stress has been laid by the learned Subordinate Judge on the way in which the written statement was drafted, and because he has come to the conclusion that the defendant cannot be allowed to get over this tamliknama. When the time for the framing of the issues came the parties understood what was meant by the plea in para 4, and there is no doubt that the learned Subordinate Judge himself understood what was meant by it. Issue 3, which was framed by him, was in the following words: Is the sale made by Hori Singh in favour of the defendant to be looked upon as a transfer for consideration with the consent of the next reversioner on behalf of the widow herself. If so, how does that affect the case.

(2.) The plaintiffs apparently led no evidence at all. On behalf of the defendant, only the defendant himself was examined as a witness. This is the entire evidence apart from certain documents which were filed by either party. The learned Subordinate Judge has come to the conclusion that there could be no surrender of the estate to the next reversioner, inasmuch as it was a gift of a part of the estate only. We may note that the defendant did not suggest to the Court below that there was any other property left by the widow after the deed of transfer of 1903. It has, however, been assumed that this was not a transfer of the entire estate then in her possession and the learned advocate for the appellant has not challenged the soundness of this assumption.

(3.) In our opinion it is not fair to the defendant to pin him down to the strict wording of the written statement which must have been drafted by his legal adviser. The issue before the parties was clear, and we think that there is no doubt that the defendant did mean to put forward the case that the two transactions were really part and parcel of one transaction, which was a sale by the widow with the consent of the next reversioner. The defence, therefore, cannot be struck out on the ground that it was not raised in the written statement.