MATA DAYAL LAL Vs. LALJI SAHAI

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit brought for recovery of possession of a one-anna zemindari share and for a declaration that certain sir and khudkasht lands appertain to that share. The plaintiff's case was that the property in dispute belonged to his maternal grandfather, Nand Kishor Lal, on whose death it was inherited by his grandmother, Mt. Shitab Kunwar for her lifetime; that Mt. Shitab Kunwar had two daughters, Mt. Maharani Kunwar and Mt. Daulat Kunwar, plaintiff being a son of Mt. Maharani, and defendants grandsons of Mt. Daulat Kunwar. Plaintiff alleged that, on the death of the two daughters, he was the sole surviving daughter's son and he became the heir to the estate in preference to the grandsons of Mt. Daulat Kunwar. He referred to the fact that he himself had executed a sale-deed in favour of Lalji Sahai, but that he was not at that time aware of the fact of his legal right. The contesting defendants pleaded that plaintiff was fully aware of all the circumstances and that he agreed to the transfer. It was further pleaded that under an arrangement arrived at in the lifetime of. Mt. Shitab Kunwar, the property had been divided between the two branches represented by the two daughters and that the settlement was binding on the plaintiff. It was further pleaded that the present claim, in view of the previous declarations, acts and conduct of the plaintiff, was barred by the principle of estoppel under Section 115, Evidence Act, as well as by the provisions of Section 41, T.P. Act. The learned Subordinate Judge came to the conclusion that although there was no valid surrender of Hindu widow's estate by Mt. Shitab Kunwar, there must have been some settlement of a dispute and a family arrangement about the year 1890, under which the property was divided between the two branches equally and that plaintiff is bound by such an arrangement. As regards Section 115, he was of opinion that there was no estoppel, but he was inclined to the view that the claim was barred by Section 41, T.P. Act. The question of estoppel, however, was dealt with very summarily by the learned Judge.

(2.) The facts appear to be as follows: Nand Kishor Lal died some time about 1869 leaving his widow Mt. Shitab Kunwar and two daughters, Mt. Maharani Kunwar and Mt. Daulat Kunwar. Undoubtedly Mt. Shitab Kunwar entered into possession of the estate as a Hindu widow and relinquished her life-interest in favour of the next reversioners. On 15 May 1883, she executed a document called "tamliknama" (deed of settlement by which she purported to give 1/3 of the estate to Mt. Daulat Kunwar, 1/3 to Mt. Maharani Kunwar and Kauleshar Dayal, the then living son of Mt. Daulat Kunwar. At that time, however, the property in question was in the possession of certain mortgagees and a provision was made in the deed that the transferees would be entitled to obtain possession on redemption. Mt. Shitab Kunwar also made provision to retain about 10 bighas of land for her own maintenance. The khewats up to the year 1890 indicate that the usufructuary mortgagees remained in possession of this property till then, and that the property was not redeemed. In the khewat for 1890-91 the entries are as follows: Mussammat Daulat Kunwar for self and as guardian of her son Jugat Narain Lal, in equal shares-half, and Mt. Maharani Kunwar for self and as guardian of her son Gayatri Prasad, in equal shares-half.

(3.) There is, with the exception of the statement of a witness, Lachhmi Sahai, no evidence whatsoever on the record to show the circumstances under which these entries came to be made. As regards the evidence of Lachmi Sahai the learned Judge has characterized him as a liar, and has rejected his evidence completely. He has noted that the evidence of this witness made a very poor impression upon him while he was in the witness-box, and the learned Judge thought that he had been "well coached and was stumbling at every place." He accordingly had no faith in his statement. The learned advocate for the respondent has not relied on the evidence of Lachhmi Sahai and it must, therefore, be altogether ignored.