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Allahabad High Court · body

1956 DIGILAW 19 (ALL)

Jhakri Tewari v. Debi Saran Upadhia, Kailash and Mst. Shyama

1956-01-10

B.UPADHYA

body1956
JUDGMENT B. Upadhya, J. - This is a Defendant's appeal arising out of a suit for possession over certain properties set out in the plaint. 2. One Ayodhya Prasad was the owner of certain zamindari property. He died leaving his widow Mst. Bachha and his heir and a daughter Mst. Chhotka. After Ayodhya Prasad's death Mst. Bachha succeeded to his assets and after Mst. Bachha's death Ayodhya Prasad's daughter came to be in possession over the properties left by him. Mst. Chhotka had a son Debi Saran, the present Plaintiff. On the 26th September, 1930, was executed a sale-deed for Rs. 250/- in respect of certain properties by Mst. Chhotka and Debi Saran. Mst. Chhotka died on the 5th January, 1945, and after her death the Plaintiff brought a suit to recover possession of the property to which he had become entitled as the daughter's son of Ayodhya on the ground that the sale-deed mentioned above was a transfer of the life estate of Mst. Chhotka deceased and as at that time the Plaintiff had no right, title or interest in the property, the execution of the sale-deed by him. conveyed no right, title or interest in the property to the vendee and now that the reversion had opened on Mst. Chhotka's death, he became entided to the property and brought this suit to recover possession as the sale by her was not binding on him. It was also urged in the plaint that the sale-deed had been executed under undue influence" and without consideration, and that the Plaintiff was a minor at the time when the document was executed. It was also pleaded that at the time of the sale the Plaintiff had at best only a chance of succession which was not transferred according to Section 6-A of the Transfer of Properly Act and the sale was, therefore, entirely illegal. 3. The suit was contested on various grounds. It was urged that the Plaintiff was not a minor at the time when he executed the document, that the sale was not bad because of undue influence, that full consideration had been paid for it, that the Plaintiff was estopped from challenging the sale and that the suit was barred by limitation. 4. It was urged that the Plaintiff was not a minor at the time when he executed the document, that the sale was not bad because of undue influence, that full consideration had been paid for it, that the Plaintiff was estopped from challenging the sale and that the suit was barred by limitation. 4. The learned Munsif, held that the Plaintiff was not a minor at the time when the sale-deed was executed, that full consideration had been paid for the same and that the sale-deed had not been executed under undue influence or without consideration. On the question of estoppel, the learned Munsif does not seem to have given adequate consideration to the relevant facts, but he appears to have disposed of the matter in a short sentence saying that the Plaintiff was not precluded from challenging the validity of the sale. The suit was decreed with costs. 5. On appeal, the learned Civil Judge upheld the findings recorded by the trial court and held that on the date this alienation was made it amounted to a transfer of 'a widow's estate and a spes successionis'. The learned Judge took the view that the transfer could not have been effective after the death of Mst. Chhotka. Certain cases were discussed by the learned Judge and a Full Bench decision of this Court reported at 1923 All. 387 was also placed before him. The learned Judge was of the opinion that the Plaintiff's attempt to transfer at that time was inoperative as a transfer of property, and was void in law for it was only a transfer of a chance of a succession, and as the sale was not a part of a family arrangement or a compromise between rival claimants, the sale could not be binding on the Plaintiff and he accordingly dismissed the appeal and affirmed the decision of the trial court. 6. Learned Counsel for the Appellant has placed before me again the decision in 1923 All. 387 and has also referred to a recent decision in Ganga Bux Singh v. Madho Singh 1955 A.W.R. (H.C.) 223. Relying on these authorities, learned Counsel has argued that as the Plaintiff was an adult at the time when the saledeed in dispute was executed and was a party to the document which was a conveyance for a consideration he was now estopped from challenging the transaction. Relying on these authorities, learned Counsel has argued that as the Plaintiff was an adult at the time when the saledeed in dispute was executed and was a party to the document which was a conveyance for a consideration he was now estopped from challenging the transaction. It has been urged that a transfer by Mst. Chhotka was a transfer not by a 'mere life estate holder', but was a transfer by a limited owner under the Hindu law. There is, it, is argued, a distinction between a life estate holder, pure and simple, and a limited owner under the Hindu law such as a widow or a woman who had succeeded as a daughter to the estate of a male. Under the Hindu Law, a limited owner is competent to effect a transfer of property which would be operative even after her life time provided certain circumstances exist as required under the Hindu law. It is for this reason that a reversioner has the option of according his consent to a transfer sought to be made by a limited owner. He has also the legal right of obtaining a declaration to the effect that the transfer purported to be made by the limited owner remained operative only during her life time and could not be binding on the reversioners after her death. The reversioner, therefore, under the Hindu law has the opportunity of expressing himself one way or the other at the time when the transfer is made. He may assent to it in which case he would be bound by the transfer, or he may challange the transfer in which case the decision would enure to the benefit of the persons in whose favour the reversion actually opens on the death of a limited owner. A reversioner may express his consent to the transfer by a limited owner by a separate document and in some of the cases that were cited during arguments, the reversioners had executed a deed of relinquishment, the effect of which came up for consideration before the Court. Execution of the sale-deed jointly with the limited owner may also be, in my opinion, a form of denoting consent by the reversioner. In the present ease I feel inclined to accept the argument of the learned Counsel for the Appellant that when the Plaintiff joined Mst. Execution of the sale-deed jointly with the limited owner may also be, in my opinion, a form of denoting consent by the reversioner. In the present ease I feel inclined to accept the argument of the learned Counsel for the Appellant that when the Plaintiff joined Mst. Chhotka in executing the sale-deed he obviously agreed to the sale of the property. 7. In Ganga Bux Singh's case mentioned above a reversioner who had succeeded to the property on the death of the Hindu widow was held to be debarred from claiming the property which the widow had made a gift of with his consent. The learned Chief Justice in delivering the judgment of the Bench dealt with other cases of this Court and of other High Courts and of the Privy Council in that connection, and observed that where the transfer impugned was one for which the reversioner had accepted some benefit for himself, he was estopped from challenging the transaction. In the present case the sale consideration had been paid to the Plaintiff as well as to Mst. Chhotka, and there is nothing to show that he did not get that amount or at least a part of it. In the circumstances I am of opinion that it is not open to the Plaintiff now to challenge the transaction for getting the sale set aside. 8. I fear the courts below did not correctly appreciate the legal position and I am unable to see how the lower court could assume that what was purported to be transferred by the Plaintiff when he joined in the execution of the sale-deed was a mere chance of succession. In fact, the document shows that the Plaintiff along with his mother Mst. Chhotka sold the property in dispute. He never mentioned that he was not entitled to it, on that what he was transferring was a more chance of succession. The reason, therefore, for which the lower appellate court thought it fit to decree the Plaintiff's suit was not really available. 9. In the light of the above observations, the Plaintiff's suit must fail. The appeal is accordingly allowed and the Plaintiff's suit is dismissed with costs.