GADHU SINGH Vs. BANSGOPAL

JUDGEMENT

(1.) Second Appeal No. 1754 of 1927 arises out of a suit for pre-emption and is connected with Second Appeal No. 1755 of 1927. It appears that on 15 and 18th June 1925, two sale deeds were executed by the vendors in favour of the vendees and two separate suits for pre-emption were instituted on 15 June 1926, by the present plaintiffs. There were certain other rival suits for pre-emption with which we are not now concerned. While these suits were pending the vendee on 19th November 1926, obtained a deed of gift of a plot of land from a Hindu widow and the deed described them as the gurus of her and her deceased husband. A plea was raised on the strength of this deed of gift that the plaintiffs had ceased to have preference as against the vendees. On 24 February 1927, the present plaintiffs instituted a third suit to pre-empt this last mentioned transaction alleging it to be a sale.

(2.) We may also mention that on 13 December 1926, a suit was instituted by the reversioners of the deceased husband of the Hindu widow, the donor but on 25 February 1927, it was dismissed on their statement that they did not want to proceed any further with the case. The suit brought to pre-empt the property covered by the deed of gift is still pending in the first Court because it has been stayed and the question whether the transaction was a sale or gift has not yet been decided in that suit.

(3.) Both the Courts below have dismissed the plaintiffs suit holding that the deed of gift taken by the vendees from the Hindu widow who is still alive is good and not defeasible and therefore the plaintiffs cannot succeed as against the vendees. There is no clear finding whether the transaction of 19 November 1926, was in reality a sale or it was a genuine gift. The lower appellate Court has thought that it is not open to the plaintiffs in this suit to raise that point. There is also no clear finding whether the deed of gift made by the Hindu widow in favour of her alleged gurus was for the spiritual benefit of her deceased husband and was in respect of such a fractional share in the estate as to be binding on the reversioners. The lower appellate Court has dismissed the suit on the main ground that the vendees having taken the gift from a Hindu widow who is still alive have acquired an indefeasible right for the time being and can defeat the plaintiffs. The learned Judge relies on the case of Naurang Rai V/s. Ram Sumer Rai . Thai case was distinguished in the subsequent case in Deo Narain Singh V/s. Ajodhya Prasad .