Jang Bahadur Mishra v. Nawal Kishore Mishra — 1965 DIGILAW 115 (PAT)

Judgment U.N.Sinha, J. 1. These two appeals have been preferred by two different sets of defendants. Second Appeal No. 882 of 1963 has been filed by defendants Nos. 1, 2 and 3. Second Appeal No. 917 of 1963 has been filed by defendant No. 4. Both these appeals arise out of one single suit instituted by the common plaintiffs respondents. The plaintiffs suit had been dismissed by the trial Court and, on appeal, the suit has been decreed and the two sets of defendants have come up to this court in their own appeals. The appeals have been heard together and this judgment will govern both of them. 2. The plaintiffs case was as follows: One Makham Mishra had three sons named Gudar Mishra, Jhingur Mishra and Kirit Mishra. Gudar had three sons named Anutha, Daroga and Ramjit. Anuthas son is Nawal, who is one of the plaintiffs. Darogas son named Chandreshwar is another plaintiff. The third plaintiff is Asharfi, son of Kirit. Jhingur had a son named Jageshwar, who had died leaving behind him a son named Ramlobhit and a daughter named Ramsikil Devi by one of his wives. Jhingur had married a second time and the second wife is Ramkali Devi, who is defendant No. 4 and the appellant in second Appeal No. 917 of 1963. It was alleged that the three sons of Makham were separate and the properties in dispute were in the branch of Jhingur. Jugeshwar had died during the lifetime of Jhingur, leaving Ramlobhit. (Sic) had also died during the lifetime of Jhingur. The plaintiffs had alleged that on the facts stated above, Jhingur had half interest in the properties of the joint family consisting of himself and his descendants, and Ramlobhit and Ramkali had one-fourth interest eack. It was said that after Ramlobhits death, his interest had devolved on Jhingur and thus Jhingur had three fourths interest. On the 5th August, 1951, Jhingur executed a will by which he conferred life-interest in 2 bighas and 3.1/2 kathas of land on Ramkali and gave the other properties to the plaintiffs. When Ramkali knew of this matter, she filed a partition suit numbered as 97 of 1951, claiming half share in the properties. The suit was compromised by the intervention of well-wishers and Jhingur executed a deed of gift in favour of Ramkali, giving all the properties to her for her life. When Ramkali knew of this matter, she filed a partition suit numbered as 97 of 1951, claiming half share in the properties. The suit was compromised by the intervention of well-wishers and Jhingur executed a deed of gift in favour of Ramkali, giving all the properties to her for her life. She was given no power of alienation, and by that deed of gift, all the properties were to devolve on the plaintiffs after Ramkalis death. It was alleged that Ramkali had agreed to the terms of this gift and had accepted the same. It was further alleged that in accordance with this deed of gift, a petition of compromise was filed in the partition suit and the suit was dismissed on the terms of the compromise. But, according to the plaintiffs, although Ramkali had not been given any power of alienation over the properties by the deed of gift, certain terms were incorporated in the compromise petition which had never been agreed upon and which were against the terms of the deed of gift. According to the plaintiffs, further, certain terms which had been agreed upon for the compromise were omitted from the petition of compromise on account of the fraud committed by one Rampadarath Missir, Bahnoi of Ramkali. According to the plaintiffs, neither by the petition of compromise filed in the partition suit nor by the deed of gift, Ramkali had any absolute right in Jhingurs properties and, therefore, she had no power of alienation. The plaintiffs case was that two sale deeds executed by Ramkali in favour of the defendants first party, who are the appellants in Second Appeal No. 882 of 1963, were not binding on the plaintiffs and the plaintiffs were entitled to a declaration to that effect. 3. The suit was contested by defendants Nos. 1 to 3 and 4, who had filed separate written statements. The defence was really the same and the substance of it was as follows. It was contended that Ramlobhit had died before his father, Jugeshwar, during the life-time of Jhingur, and, therefore, Ramkali had half share in the properties and not one-fourth share. It was admitted by Ramkali that she had filed partition suit No. 97 of 1951, claiming half share in the properties to which she was entitled. (It was the common case of the parties that Jugeshwar had died in 1941). It was admitted by Ramkali that she had filed partition suit No. 97 of 1951, claiming half share in the properties to which she was entitled. (It was the common case of the parties that Jugeshwar had died in 1941). According to Ramkali, this suit was compromised and Jhingur had relinquished his interest in her favour and had given her absolute right in the properties. Jhingur was entitled to maintenance only. It was agreed that Jhingur executed a deed of gift in respect of his share according to this compromise, and in fact, a petition of compromise was filed in the partition suit and Ramkali was put in possession of all the properties. All allegations of fraud having been perpetrated in bringing into existence a false compromise " petition were denied. But, according to Ramkali, Jhingur had executed a deed of gift in her absence and the terms of this deed of gift, contrary to the agreement between the parties, were not binding on her. According to her, she had acquired absolute interest in the entire properties of this branch of the family after the Hindu Succession Act of 1956 had been enacted. According to Ramkali, she had every right to execute the sale deeds in favour of the defendants first party, which were challenged by the plaintiffs. These sale deeds were said to have been executed for consideration and for legal necessity. Thus according to the defendants, the suit; was liable to be dismissed. 4. The court of appeal below formulated the following point for consideration on appeal by the plaintiffs after the suit was dismissed by the trial Court, namely: 1. Whether the deed of gift dated 27-10-51 executed by Jhingur Mishra is genuine and valid? 2. Whether the terms mentioned jn the compromise in P. S. No. 97 of 1952 are actually the terms settled between the parties, i.e., Jhingur Mishra and defendant No. 4 or they are fraudulent? Whether the compromise and deed of gift are binding on defendant No. 4 and Jhingur Mishra and the plaintiffs? 3. Whether defendant No. 4 got absolute estate through the deed of gift and compromise of only life interest? Whether the compromise and deed of gift are binding on defendant No. 4 and Jhingur Mishra and the plaintiffs? 3. Whether defendant No. 4 got absolute estate through the deed of gift and compromise of only life interest? It has been held by the learned Subordinate Judge, on appeal, that the deed of gift (the date of the deed of gift and the year of the partition suit mentioned as 27-10-1951 and 1952 are wrong; they should be 27-5-1952 and 1951 respectively) was valid and binding on Ramkali, whereas the terms of compromise incorporated in the compromise petition filed in the partition suit were not in accordance with the actual terms agreed upon between the parties of that suit. Thus, it has been held that Ramkali did not get an absolute estate, but she got only life interest in the properties in question under the deed of gift without power of alienation. It has, therefore, been held that the plaintiffs being the next reversioners are entitled to the declaration sought for. I may mention here that it has been held that Ramlobhit had died after his father, Jugeshwar, and both the courts have held that Ramkali had one-fourth interest in the properties of this branch, whereas Jhingur had three fourths interest after the death of his son and grandson. 5. The first question that has been mooted at the bar in this court is whether Ramkali had half interest in the properties in Jhingurs branch or whether she had only one-fourth interest, as the courts below have held. The learned Advocate-General appearing for Ramkali has contended that in 1951, when Ramkali instituted Partition Suit No. 97 of 1951, she had half interest in the properties, as was claimed by her in that suit. Reliance is placed on the decision of the Supreme Court, in the case of Lakshmi Perumallu V/s. Krishna-venamma, AIR 1965 SC 825 . According to the learned counsel for the plaintiffs respondents, Ramkali had no specific share in the properties at any time, and the institution of the partition suit by her did not make any difference, as the suit was ultimately dismissed on compromise. It is contended that Ramkali could not have predicated her share at any given instant, and, therefore, her right would be governed by the deed of gift, as has been rightly held by the court of appeal below. It is contended that Ramkali could not have predicated her share at any given instant, and, therefore, her right would be governed by the deed of gift, as has been rightly held by the court of appeal below. It appears to me that the contentions raised by the learned Advocate-General in this Context are valid and must be accepted. The conclusions of the courts below that Ramkali had one-fourth interest and after Ramlobhits death, his one-fourth interest had devolved on Jhingur cannot be accepted as correct. What share Ramkali had in 1951 must be determined from the state of the family in that year and in 1951 the members of the family were Jhingur, the sole surviving coparcener and his predeceased sons widow, Ramkali. When Ramkali instituted the partition suit, she had the same interest as her husband would have had, and in the partition suit she was entitled to claim half share as she had in fact claimed. In my opinion, Ramkali could predicate her half share in the partition suit and claim partition of this half share by virtue of the right that she had under Sec.3 of the Hindu Womens Rights to Property Act (Act 18 of 1937 amended by Act 11 of 1938), read with the Bihar Hindu Womens Rights to Property (Extension to Agricultural Land) Act, 1948 (Bihar Act XXI of 1948). The interest that had devolved on Ramkali was Hindu Womens estate. This view is fully supported by the decision of the Supreme Court mentioned above. This leads to the second contention argued on behalf of the parties. The second question is whether the court of appeal below has rightly held that the deed of gift was binding on Ramkali and she would have only life-interest in the properties of this branch of the family, without power of alienation. In this connection, I may reiterate that the plaintiffs themselves had challenged the compromise decree of the partition suit and both the courts have accepted the plaintiffs contention. The Court of appeal below has stated that the terms mentioned in the deed of gift and those mentioned in the petition of compromise filed in the partition suit were not consistent with one another and were in fact contrary in their purport. The Court of appeal below has stated that the terms mentioned in the deed of gift and those mentioned in the petition of compromise filed in the partition suit were not consistent with one another and were in fact contrary in their purport. I am not at all sure that the courts below have arrived at the correct conclusion, that, the terms mentioned in the deed of gift and those mentioned in the petition of compromise were inconsistent with one another. But in view of the contentions of the parties, and the conclusions arrived at by the courts below, the matter must be left as it is. Upon the deed of gift the learned Subordinate Judge has held, differing from the trial Court, that, Ramkali had agreed to the terms of the deed of gift and, therefore, her rights would be governed by the terms thereof. According to the contentions of the learned Advocate-General, even if it be held that what Bhola Mishra (P. W. 11) has deposed as to the circumstances under which the deed of gift had come into existence is true, Ramkali was a purdanishin lady and upon the evidence led by the plaintiffs themselves, it must be held that the plaintiffs have failed to prove that Ramkali was bound by the deed of gift, executed unilaterally by Jhingur, dealing with the entire properties of this branch. The learned Advocate-General has relied in this context upon a decision of the Supreme Court in the case of Mst. Kharbuja Kuer V/s. Jangbahadur Rai, AIR 1963 SC 1203 and a decision of the Privy Council, in the case of Hemchandra V/s. Suradhani Debya, AIR 1940 PC 134, mentioned therein. Learned counsel for the plaintiffs-respondent has urged, on the other hand, that the finding of the court of appeal below that Ramkali had agreed to the terms of the deed of gift is a finding of fact based on the oral evidence adduced on behalf of the plaintiffs, and, therefore, this question cannot be further agitated in this appeal. I am however, of the opinion that in this context also, the arguments made by the learned Advocate-General are valid and it must be held that the plaintiffs have failed, in law, to prove that the deed of gift was binding on Ramkali. I am however, of the opinion that in this context also, the arguments made by the learned Advocate-General are valid and it must be held that the plaintiffs have failed, in law, to prove that the deed of gift was binding on Ramkali. She was a purdanishin lady as she has deposed and the very recitals in the deed of gift (Exhibit 5) clearly indicate that even Jhingur and his advisers had not realised the rights of the parties, not to speak of Ramkali. On the 27th May, 1952, when the deed of gift was executed by Jhingur, Ramkalis rights were governed by Statute, her husband having died in 1941, and it is clear that no significance was attached to her rights when Jhingur purported to deal with the entire properties by the deed of gift. Some of the relevant terms of Exhibit 5 (a translation of which has been supplied to the court and upon which arguments have been advanced) are mentioned below. It was stated that it had been settled that Jhingur should "make a gift of all my land and property to the claimant without giving her the right to transfer or encumber the same". It was further stated thus: "I put the claimant in possession and occupation of the land given in gift and make her absolute proprietor thereof in place of myself". and, "The claimant will not have any right to transfer and encumber the same." Towards the end of this document it was stated thus: "After the death of the claimant, the gift property will pass over- to the interest and possession and occupations of the agnates, that is, to the heirs of Gudar Missir and Kirat Missir whoever will remain alive at that time in accordance with the genealogical table." It is manifest therefore that Jhingur and his advisers were proceeding on the footing that the properties dealt with by this deed of gift were the properties of Jhingur alone, to which Ramkali had no right except what she got by this bounty. In this state of affairs, mere evidence to the effect that the deed of gift had been read over to Ramkali and that the terms were accepted by all, will not make the transaction binding on a purdanishin lady, without anything more. In this state of affairs, mere evidence to the effect that the deed of gift had been read over to Ramkali and that the terms were accepted by all, will not make the transaction binding on a purdanishin lady, without anything more. The evidence given by Bhola Mishra has been dealt with by the Jearned Subordinate Judge thus: "P. W. 11 Bhola Mishra has clearly stated that he had signed for Jhingur Mishar at his request. He has further stated that the contents of the Atayanama were read over and explained and they were admitted to be correct by the parties concerned. He has stated that Ramkali was present there and the terms of the Atayanama were accepted by all concerned and Jhingur Mishar put his T. I. aftef it was read over and explained to him." The learned Subordinate Judge has correctly given the substance of the evidence given by P. W. 11 in this context and on this evidence alone, the requirements of law are surely not satisfied. It may be stated that in connection with Jhingurs will, the learned Subordinate Judge has himself stated in his judgment that: "There was a notion with old people that the female gets only life interest and nothing beyond that. In this case there was a complication. It was not easy for an ordinary Hindu to know whether defendant No. 4 would get any interest in the property or not and if she would get interest whether it was four annas or eight annas. So apparently it cannot be said that Jhingur Missar the father-in-law of defendant No. 4 was doing all against her interest. It might be possible that due to ignorance he was safeguarding her interest by giving 2 bighas 13 kathas and odd land for her maintenance and the rest to the plaintiffs who were the next reversioners and were entitled to the same." In connection with the deed of gift he has stated later on thus: "The deed of gift indicates that he had gifted away the entire interest. He treated himself as the sole coparcener of the property. Apparently it is so. He treated himself as the sole coparcener of the property. Apparently it is so. So there is no necessity to mention the share in the deed of gift." These very observations made by the learned Subordinate Judge indicate that no one had realised the correct legal position in 1952, as to Ramkalis interest and in the absence of any evidence to the effect that the import of the unilateral declarations of Jhingur had been explained to Ramkali, the terms of the deed of gift cannot possibly curtail the rights that she had in law in 1952, even if the deed of gift had been read over to her. In my opinion, the principle upon which the learned Advocate General has relied, based on the judgment of the Privy Council reported in AIR 1940 PC 134 can be called in aid for a conclusions that the deed of gift of 1952 could not have curtailed Ramkalis rights under the Statute. The position of a purdanishin lady has been mentioned by their Lordships of the Supreme-Court in the recent decision in Mst. Kharbuja Kuers case, AIR 1963 SC 1203 , and in my opinion, the evidence led on behalf of the plaintiffs falls short of the legal requirements. If neither Jhingur nor Ramkali was in a position to comprehend the implications of the declarations of Jhingurs right made in the deed of gift, it is not possible to hold that from 1952 Ramkalis rights in the properties of this branch of the family began to be governed solely by the deed of gift executed by Jhingur in her favour. I am, therefore, of the opinion that the trial Court was right in dismissing the plaintiffs suit, although it was dismissed on a question of fact, namely, that Ramkali had not agreed to the terms of the deed of gift. It appears to me that the plaintiffs suit is liable to fail on the ground that the plaintiffs have failed to prove that the legal implications of the deed of gift had been explained to Ramkali, to which transaction she had deliberately agreed, knowing that her statutory right, as a holder of a Hindu Womans estate, to a share in the properties, had been affected. For these reasons Second Appeal No. 917 of 1963 must succeed. For these reasons Second Appeal No. 917 of 1963 must succeed. 6 In Second Appeal No. 882 of 1963, it has been urged on behalf of the alienees that even if the deed of gift was binding on Ramkali, the recitals show that she had been given an absolute right in all the properties, without power of transfer or encumbrance, and, therefore, the gift was good and the restrictions were invalid. I do not think, that, this interpretation of the deed of gift is a correct one. If this document is interpreted according to the recitals made therein some of which have been quoted above, it is clear that what was meant to be conveyed to Ramkali was less than an absolute interest in the properties mentioned in the document. However learned counsel appearing for defendants No. 1 to 3 has accepted all the contentions raised by the learned Advocate-General in the connected appeal and it is contended that this appeal must also succeed upon the arguments advanced by the learned Advocate-General. This is correct. If Second Appeal No. 917 of 1963 is allowed, Second Appeal No. 882 of 1963 must also succeed on the same reasonings. 7. In the result, both these appeals are allowed and the decree of the court of appeal below is reversed and that of the trial Court restored with costs of both the courts below. With respect to the costs of this Court, it appears that each of these appeals in this Court has been valued at Rs. 2,100, which was the valuation of the suit, and, therefore, costs of Second Appeal No. 882 of 1963 will be divided half and half in favour of the appellants in the two appeals. No separate order of costs is passed with respect to Second. Appeal No. 917 of 1963.