Chandradip Rai v. Mahip Rai — 1959 DIGILAW 103 (PAT)

Judgment B.N.Rai, J. 1. This appeal by two of the transferees and Musammat Rukminia Kuer, who was defendant No. 4 to the title suit, is directed against the judgment and decree passed by the learned Subordinate Judge, first court, Arrah, in Title Suit No. 9 of 1952 by which he had held that the rehan bond in favour of defendant No. 1, Chandradip Rai, and the dedication in favour of defendant No. 5, Ram Lakshman Janki, made by the limited owner, Musammat Rukminia Kuer, was not binding upon the next reversioner to the estate of Ramchandra Rai after the death of the limited owner. 2. The facts necessary for the determination of the points in controversy in this appeal may shortly bo stated as follows : Balchoti Rai, brother of the plaintiff, had died some 33 years ago leaving behind him his minor son, Ramchandra Rai, and his widow, Musammat Rukminia Kuer. After the death of his father, Ramchandra Rai came in possession of his properties and remained in possession thereof until the time of his death which had happened some years after he had attained majority. After the death of Ramchandra Rai, his mother, Musammat Rukminia Kuer, succeeded to the properties left by her deceased son. On 31-3-1950, Musammat Rukminia Kuer executed a rehan bond in favour of Chandradip Rai, defendant No. 1. The lady had also executed another deed of transfer which is not necessary to be mentioned here. On 3-3-1952, the plaintiff instituted the title suit out of which" the present appeal arises for a declaration that the alienations made by the limited owner were not binding upon the next reversioner after her death. During the pendency of the suit, Musammat Rukminia Kuer executed a registered deed of Arpannama dated 18-5-1952, whereby she dedicated 3.843 acres of raiyati land and a house standing on .03 acre of land as well as thirteen mango and three mahua trees in favour of Shri Thakur Ram Lakshman Janki. The plaintiff thereafter got the plaint amended and included that alienation also in the present suit. He made the deity defendant No. 5 to the nation. 3. The suit was contested by Musammat Rukminia Kuer as well as by the transferee defendants, who pleaded, inter alia, that the transfers were binding upon the next reversioner. 4. The plaintiff thereafter got the plaint amended and included that alienation also in the present suit. He made the deity defendant No. 5 to the nation. 3. The suit was contested by Musammat Rukminia Kuer as well as by the transferee defendants, who pleaded, inter alia, that the transfers were binding upon the next reversioner. 4. The learned Subordinate Judge accepted the contention of the plaintiff and held that the rehan bond executed in favour of defendant No. 1 and the deed of Arpannama in favour of the deity, defendant No. 5, were not binding upon the next reversioner to the estate of Ramchandra Rai after the death of Musammat Rukminia Kuer. These two transferees along with Musammat Rukminia Kuer thereafter came up ie appeal before this Court. 5. Learned counsel for the appellants contended on the strength of the decision in the case of Gummalapura Taggina Matada Kotturuswami V/s. Setra Veeravva, AIR 1959 SC 577 that the present plaintiff is not entitled to challenge the binding nature or otherwise of the rehan bond dated 31-3-1950, because the limited owner will be deemed to be in possession of the equity of redemption and by virtue of Sec.14 of the Hindu Succession Act, 1956 , she will be deemed to have acquired an absolute interest therein bringing to an end the interest of any reversioner so far as that property is concerned. The relevant portion of the judgment of their Lordships of the Supreme Court runs thus : "On behalf of the respondent it was urged that the words possessed by had a wider meaning than actual physical possession, although physical possession, may be included in the expression. In the case of Venkayamma V/s. Veerayya, (S) AIR 1957 Andh-Pra 280, Viswanatha Sastri J. with whom Satyanarayana Raju J. agreed, expressed the opinion that the word possessed in Sec.14 refers to possession on the date when the Act came into force. Of course, possession referred to in Sec.14 need not be actual physical possession or personal occupation of the properly by the Hindu female but may be possession in law. Of course, possession referred to in Sec.14 need not be actual physical possession or personal occupation of the properly by the Hindu female but may be possession in law. The possession of a licensee, lessee or a mortgagee from the female owner or the possession of a guardian or a trustee or an agent of the female owner would be her possession for the purpose of Sec.14, The word possessed is used in Sec.14 in a broad sense and in the context possession means the state of owning or having in ones hand or power. It includes possession by receipt of rents and profits. The learned Judges expressed the view that even if a trespasser were in possession of the land belonging to a female owner, it might conceivably be regarded as being in possession of the female owner provided the trespasser had not perfected his title. We do not think that it is necessary in the present case to go to the extent to which the learned Judges went. It is sufficient to say that possessed in Sec.14 is used in a broad sense and in the context means the state of owning or having in ones hand or power." Learned Counsel for the plaintiff-respondent very fairly conceded that in view of the provisions of Sec.14 of the Hindu Succession Act, the plaintiff is not entitled to any declaration in respect of the rehan bond in question. 6. Learned Counsel for the appellants next contended that Sec.14 of the Hindu Succession Act applied to the case of Arpannama also. He submitted that in the deed of Arpannama, Mt. Rukminia Kuer had constituted herself as the first shebait reserving to herself the right to appoint any other she-bait to manage the properties of the deity. Learned Counsel for the appellants contended that Musammat Rukminia Kuer was in possession of the properties endowed to the deity in her capacity as the she-bait of the idol, and that possession, according to him, would satisfy the requirements of Sec.14, sub-section (1) of the Hindu Succession Act, 1956, which runs thus : "Any property possessed by a female Hindu whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation -- In this sub-section, property includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as Stridhana immediately before the commencement of this Act. Learned Counsel for the appellants had contended that the limited owner, Musammat Rukminia Kuer, will be deemed to have acquired absolute right in respect of the properties dedicated to the deity also on the authority of the Supreme Court decision mentioned above. In my opinion, there is no force in this contention of learned Counsel for the appellants. Their Lordships in saying that the possession of a guardian or a trustee or an agent of the female owner would be her possession meant to say that the female owner had the beneficial interest in the property which was in possession of a guardian or a trustee or an agent. They never meant to lay down that a limited owner in possession of anothers property as a trustee will acquire absolute interest in the property in her possession as trustee by virtue of Sec.14 of the Hindu Succession Act, 1956 . In my opinion, therefore, the possession of Musammat Rukminia Kuer as a Mutwalli of the properties endowed wall not confer any absolute right on hex in accordance with the provisions of Sec.14 of the Hindu Succession Act. The plaintiff had, therefore, every right to institute the present suit to get a declaration that the dedication was not binding upon the next reversioner after the death of the limited owner. 7. Learned Counsel for the appellants contended that the dedication in question should be deemed to be bad from the very date of its execution and will be considered to be not in existence, and in such state of affairs the lady will be deemed to have remained in possession of the property in her own right and not as a trustee of the deity. In my opinion, there is no scope for this argument on the pleadings of the defendants and on the evidence led in the case on their behalf. In my opinion, there is no scope for this argument on the pleadings of the defendants and on the evidence led in the case on their behalf. The dedication is surely good and valid as long as Musammat Rukminia is alive, but the effect of the declaration given by the court below is that the reversioners will not be bound by this dedication and will be entitled to get possession of the property after the death of the lady in spite of this dedication. In paragraph 16 of the written statement of defendant No. 5 it had been specifically pleaded that the deity was in possession and occupation of the properties dedicated. It had been further pleaded in paragraph 19 of the written statement that Musammat Rukminia Kuer was merely a Mutwalli o£ the deity and was looking after the management of the dedicated property in that capacity. Such is also the evidence of witness No. 1 for the deity, Rambalak Rai, who deposed to the following effect : "Rukminia has made a dedication of 6 1/2 big-has of lands in favour of the deities about 2 or 2 1/2 years ago and the deities are in possession thereof through Rukminia who is the Mutwalli, The expenses of worship of Thakurji are met out of the proceeds of these lands." In my opinion, in view of the categorical statements made in tho written statement of the deity, and in view of the evidence of the deitys witness, it is not open to learned Counsel for defendant No. 5, appellant, to argue that the deity was not in possession and that the lady was in possession in her own right. 8. Learned Counsel for the appellants then contended that there is no rule of law fixing any proportion of the property of a deceased full owner which could be validly dedicated by a limited owner. The learned Subordinate Judge while discussing the scope of the dedication in question had observed as follows : "Now, as already pointed, an alienation of the estate by a Hindu woman for spiritual welfare or the last owner can be made only with respect to a small portion of the property. In the present case it is admitted that Ramchandar left only 10 bighas of lands (vide D.W. 10, page 3). In the present case it is admitted that Ramchandar left only 10 bighas of lands (vide D.W. 10, page 3). As already stated the Arpannama in question covers 3.845 acres of land, i.e. 6 bighas 3 kathas of land besides a house comprising 0.03 acres and a number of trees. It is thus apparent that the transfer was not with respect to a small portion of the property left by Ramchandar but really covers the major portion of the estate." From the cross examination of Musammat Rukminia Kuer the same state of affairs has been established. The relevant portion of her evidence in this connection runs as follows : "After the transfer forming the subject matter of the present suit, I am still left with 1 1/4 bighas of land in village Ekwari. X X X X X I myself am the trustee of the 6 1/2 bighas of lands which have been dedicated by me to Thakurji. Last year the 6 1/2 bighas of lands dedicated to Thakurji yielded 25 to 30 maunds of paddy while the 1 1/4 bighas, which still belongs to me, did not yield any paddy as the crop dried up. Out of the 6 1/2 bighas of lands, only 2 bighas are canal irrigated. The 1 1/4 bighas is not canal irrigated." Thus, from the evidence of Musammat Rukminia Kuer, D.W. 10 it is quite apparent that out of 10 bighas she had gifted away about 6 bighas of land to the deity and she had only about 1 1/4 bighas of land left for herself. Such a dedication, in my opinion cannot bo held to be binding upon the next! reversioner after the death of the limited owner. It as true that no hard and fast mathematical proportion has been laid down in any of the decided cases in order to consider as to what proportion of the property can be validly dedicated by a limited owner, but all the cases have laid down that the area dedicated should be a small fraction of the property inherited by the limited owner. In the case of Mst. Tulsha, V/s. Lachman Prasad ILR 18 Luck 501 : (AIR 1943 Oudh 109) endowment by a Hindu widow in respect of a little more than one-third of the total estate was held as not justified under the Hindu Law. In the case of Mst. Tulsha, V/s. Lachman Prasad ILR 18 Luck 501 : (AIR 1943 Oudh 109) endowment by a Hindu widow in respect of a little more than one-third of the total estate was held as not justified under the Hindu Law. The conclusion of the learned Subordinate Judge in this case to the effect that an alienation for spiritual welfare can be made only with respect to a small portion of the property in the hands of the limited owner, is fully supported by the decision of Sardar Singh V/s. Kunj Behari Lal 49 Ind App 383 : (AIR 1922 PC 261) and referred to in Mst. Tulshas case, ILR 18 Luck 501 : (AIR 1943 Oudh 109). The decision of Khub Lal Singh V/s. Ajodhya Misser, ILR 43 Cal 574 : (AIR 1916 Cal 792) and Vuppuluri Tatayya V/s. Ramakrishnamma, ILR 34 Mad 288, approved by their Lordships of the Privy Council in Sardar Singhs case. 49 Ind App 383: (AIR 1922 PC 261) also lead to the same conclusion. In the present case, the dedication is in respect of over 6 bighas of land out of 10 bighas which had come in possession of the lady after the death of her son. In my opinion, therefore, the dedication in question cannot be binding upon the next reversioner to the estate of Ramchandra Rai after the death of the limited owner. 9. The result is that the judgment and decree passed by the court below are set aside so far as the declaration relating to the deed of rehan dated 31-3-1950, executed by Musammat Rukminia Kuer in favour of Chandradip Rai is concerned, but the judgment and decree of the court below are affirmed in other respects. The appeal is accordingly allowed in part. In the circumstances of this case, each party will bear its own costs of this Court. U.N.Sinha, J. 10 I agree.