MT LACHHMINA KUNWARI Vs. MTMAKFULA KUNWARI

JUDGEMENT

(1.) In the litigation that has culminated in the present appeal the cardinal question at which the parties were at issue related to the validity or otherwise of a perpetual lease dated 23 December 1921. The lease was with respect to various agricultural plots of land situated is six villages in the district of Ballia. These villages were owned in equal shares by three sets of persons. Rudra Narain Rai, the husband of Lachhmina Kunwari, plaintiff-appellant, was the owner of a one- third share in each of the six villages, whereas the remaining two-third share in those villages was owned in equal shares by persons who are now represented in the present litigation by defendants first and second sets respectively. The plots covered by the lease were in possession of several occupancy tenants, but it is common ground that before the execution of the lease all those tenants except one died without leaving heirs entitled to succeed under the Tenancy Act (Act 2 of 1901). One of the plots covered by the lease was in possession of an occupancy tenant who died leaving one Lachhmi Pande as his heir, and though the plaintiff- appellant claimed possession over that plot as well, her suit with respect to that plot was dismissed by the trial Court and we are no longer concerned with that plot in the present appeal. It is further a matter of admission that the plots in dispute were by mutual arrangement partitioned between Rudra Narain Rai and defendants first set on the one hand and defendants second set on the other and one-third share in each plot towards the south was allotted to defendants second set and the remaining two-third share was allotted to Rudra Narain and defendants first set.

(2.) On 18tb December 1909, Rudra Narain Rai executed a deed of gift with respect to his entire one-third share in the six villages in favour of some of the defendants first set and the predecessors-in-interest of the remaining defendants of that set. By virtue of this transfer defendants first set became owners of a two- third share in all the six villages and therefore owners of two-third share in all the plots in dispute towards the north. The donees under the deed of gift covenanted to pay Rs. 2000 a year on account of maintenance to Rudra Narain and to certain ladies and it was stipulated in the deed of gift that the failure to pay this maintenance would entitle the donor to cancel the gift and to take possession of the gifted properties. The donees made default in payment and then on 7th November 1919, Rudra Narain and his wife, the present plaintiff, brought a suit for cancellation of the deed of gift, for possession of the property covered by the same and for mesne profits. In that suit all the donees or their representatives-in- interest were impleaded as defendants. The suit was dismissed by the trial Court on 20 August 1920, and a first appeal was filed by the plaintiffs of that suit in this Court. During the pendency of the first appeal the lease referred to above was executed on 23 December 1921. It is unnecessary to mention specifically the names of the lessors and the lessees as it is sufficient for the purposes of this appeal to assume broadly that the lease was by defendants first set in favour of defendants third set. The lease was with respect to the two-third share in each plot towards the north and it is admitted that, on the execution of the lease, the defendants third set entered into possession of the plots in dispute and continued to pay all along the rent reserved by the lease.

(3.) The first appeal mentioned above was allowed by this Court on 3 January 1932, and the claim of Rudra Narain and the present plaintiff for cancellation of the gift and for possession of the property covered by the same together with mesne profits was decreed. The decision of this Court was upheld by their Lordships of the Privy Council on 11 March 1927. Rudra Narain died during the pendency of the litigation just mentioned and was succeeded by Lachhmina Kunwari, the plaintiff-appellant. In the year 1933 Lachhmina Kunwari commenced the action giving rise to the present appeal. She prayed that the lessees, viz. the defendants third set, be evicted from the plots in suit and that possession be awarded to her jointly with the defendants first set over those plots. She also claimed a decree for mesne profits, but that portion of the claim was dismissed by the trial Court and the decree of that Court to that extent has become final.