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1965 DIGILAW 92 (PAT)

Chandreshwar Prasad v. Mt. Maturni

1965-08-31

K.SAHAI

body1965
Judgment Kamla Sahai, J. 1. This appeal by defendants Nos. 1 and 4 arise out of a suit for possession of some lands partly in village Shattar and partly in village Dikshitpur and for mesne profits. 2. Admittedly, Sheosaran Mahto was the last male holder. He was governed by the Mitakshara School of Hindu law. He died, and, after his death, his widow, Musammat Razali, came into possession of his lands, She executed four sale deeds in favour of defendants Nos. 1 to 4 in respect of different properties. The plaintiff, who is a gotia of Sheosaran Mahto, instituted Title Suit No, 262 of 1950 for a declaration that the sale deeds were executed by the widow without any legal necessity, and hence they were not binding upon Sheosaran Mahtos estate. The suit was decreed ex parte on the 2nd March, 1951; Musammat Razali died in Bhado, 1364 Fasli, equivalent to 1957 A. D. All these facts are admitted 3. The plaintiffs case is that he asked the defendants after the death of Musammat Razali to make over possession of the disputed lands to him, but they did not comply. Hence, he has instituted this suit for possession and mesne profits. 4. The case of the defendants is that, at the time when the succession opened on the death of Musammat Razali, the plaintiff was not the next reversioner of Sheosaran Mahto; the next reversioner was Musammat Paudharia, sister of Sheosaran Mahto. Hence, the plaintiff is not entitled to a decree, as praved for by him 5. The learned Munsif, who tried the suit held that Paudharia was the sister of Sheosaran Mahto, that, that being so, she was the next reversioner, and that she was, and the plaintiff was not, the next reversioner at the time when the succession opened. Hence he dismissed the suit. The plaintiff filed an appeal, and the appeal was heard by the 2nd Additional Subordinate Judge Chapra. He has affirmed the finding of the learned Munsif that Musammat Paudharia is the sister of Sheosaran Mahto, and hence she and not the plaintiff was the next reversioner at the time when the succession opened. He has, however, held that the decision in title Suit No. 262 of 1950 operates as res judicata in the present case on the point that the plaintiff is the next reversioner. He has, however, held that the decision in title Suit No. 262 of 1950 operates as res judicata in the present case on the point that the plaintiff is the next reversioner. Hence, he has held that the question as to who is the next reversioner of Sheosaran Mahto cannot be considered in this case. In this view of the matter, he has allowed the appeal and has decreed the suit. 6. I may mention one more fact. Defendants Nos. 2 and 3 died during the pendency of the appeal in the lower appellate Court. The plaintiff, who was the appellant in that Court, did not get their heirs substituted in their places. The appeal, therefore, abated in so far as those heirs were concerned. The learned Additional Subordinate Judge has therefore, said that the plaintiff would not be entitled to recover possession or to a decree for mesne profits as against the heirs of defendants Nos. 2 and 3. Hence, he has decreed the suit only in respect of defendants Nos. 1 and 4. In my Judgment, the learned Additional Subordinate Judge should have considered whether the appeal, having abated in so far as the heirs of defendants Nos. 2 and 3 were concerned, had or had not abated as a whole. As the decree that the plaintiff was not the next reversioner and, as such, was not entitled to a decree for possession and mesne profits had become final in so far as defendants Nos. 2 and 3 were concerned, the learned Subordinate Judge should have considered the point whether the decree, if passed against defendants Nos. 1 and 4, would be a decree contradictory to the one which has become final as against the defendants Nos. 2 and 3. 7. However, Mr. A. N. Chatterji, who has appeared on behalf of the appellants in this Court, has argued that the learned Subordinate Judges decision on the point of res judicata is erroneous in my judgment, his argument is correct and must prevail. It is well settled, that, when a reversioner institutes a suit in the life time of the widow for a declaration that an alienation or waste committed by a widow is not binding upon the estate, he cannot get a declaration that he is the next reversioner. It is well settled, that, when a reversioner institutes a suit in the life time of the widow for a declaration that an alienation or waste committed by a widow is not binding upon the estate, he cannot get a declaration that he is the next reversioner. He has only a contingent reversionary interest in the estate at the time, and, when he sues for the purpose just mentioned, he sues in a representative capacity on behalf of the entire body of reversioners. Reliance may be placed in this connection on Janki Ammal V/s. Narayanaswami Aiyer, AIR 1916 PC 117. In another case Venkatanarayana Pillai V/s. Subbammal, ILR 38 Mad 406 : (AIR 1915 PC 124) before the Privy Council, the question arose whether, on the death of the next reversioner who had instituted the suit, the next presumable reversioner could be substituted in his place, Mr. Ameer Ali, who delivered the judgment of the Board, observed: "Under Hindu Law the death of the female owner opens the inheritance to the reversioners, and the one most nearly related at the time to the last full owner becomes entitled to possession. In her lifetime, however, the reversionary right is a mere possibility or spes successionis. But this possibility is common to them all, for it cannot be predicated who would be the nearest reversioner at the time of her death. The Indian Law, however, permits the institution of suits in the lifetime of the female owner for a declaration that an adoption made by her is not valid, or an alenation effected by her is not binding, against the inheritance." His Lordship has further observed: "There is nothing to preclude a remote reversioner from joining or asking to be joined in the action brought by the presumptive reversioner, or even obtaining the conduct of the suit on proof of laches on the part of the plaintiff or collusion between him and the widow or other female whose acts are impugned. It is the common injury to the reversionary rights which entitles the reversioners to sue. Apart, therefore, from the question whether, the next presumable heir is the legal representative of the deceased presumptive reversioner, there remains the outstanding fact of identity of interest on the part of the general body of reversioners, near and remote, to get rid of the transaction which they regard as destructive of their rights." 8. Mr. Apart, therefore, from the question whether, the next presumable heir is the legal representative of the deceased presumptive reversioner, there remains the outstanding fact of identity of interest on the part of the general body of reversioners, near and remote, to get rid of the transaction which they regard as destructive of their rights." 8. Mr. Kailash Rai, who has appeared on behalf of the plaintiff respondents, has referred to an observation in Balmakund Lal V/s. Musammat Sohano Kueri, ILR 8 Pat 153 : (AIR 1929 Pat 164). The observation at p. 161 of ILR Pat): (at p. 168 of AIR) is as follows: "It is now firmly established that the Court in its discretion will not make a declaretion in favour of a remote reversioner in regard to the acts and transaction of the widow unless the nearest revisioners refuse without sufficient cause to institute proceedings or unless they have precluded themselves by their own acts or conduct from suing or have colluded with the widow or concurred in the acts alleged to be wrongful (see Anand Kuer V/s. The Court of Wards, (1880) 8 Ind App 14 (PC)." On this basis, learned Counsel has argued that the ex parte decision in the previous title suit necessarily involves a decision on the point that, at least, at that stage, the plaintiff was the next reversioner. He has further argued that no situation has arisen later or, in other words, Paudharia is not alleged to have been born after that decision, and hence the decision in that case that the plaintiff was the next reversioner must operate as res judicata in the present case. I am unable to agree, the plaintiff represented the entire body of reversioners when he instituted Title Suit No. 262 of 1960. The more foot that one female like Paudharia intervened between him and the reversioner, even if proved, could not defeat his suit. I may refer in this connection to Ramyad Pande V/s. Rambihara Pande, AIR 1920 Pat 514. I am unable to agree, the plaintiff represented the entire body of reversioners when he instituted Title Suit No. 262 of 1960. The more foot that one female like Paudharia intervened between him and the reversioner, even if proved, could not defeat his suit. I may refer in this connection to Ramyad Pande V/s. Rambihara Pande, AIR 1920 Pat 514. Dawson-Miller, C. J. with whom Foster, J. agreed, observed in that case : "It would appear therefore, that there is practically a consensus of opinion in the different High Courts that a reversioner who is not the immediate reversioner, but who is the immediate male reversioner, is entitled to sue for a declaration declaring the invalidity of transfers made by the widow, notwithstanding that there may be other female lives between him and the estate." Even if the defendants in the earlier suit, therefor, had pleaded the existence of Paudharia as being the sister and immediate reversioner of Sheosaran Mahto, the plaintiff would have been able to maintain the suit. Hence, the necessary decision which must be held to have been involved in the ex parte decree, passed in favour of the plaintiff in that suit must be held to be that the plaintiff was then the next reversioner except for any female reversioner who might intervene between him and the estate. That decision, therefore, cannot operate as res judicata on the question raised in the present suit as to whether the plaintiff or Paudharia, the sister of Sheosaran Mahto, is the immediate reversioner, and was such immediate reversioner, at the time when the succession opened, I, therefore, hold that the decision of the Subordinate Judge that the point is barred by res judicata is erroneous. 9. Mr. Chatterji has also referred me to the decision of Viswanatha Sastri, J. In Sarangapani Ayyangar V/s. Venkata Narasimhacharyulu, AIR 1952 Mad 384 in that case, the daughter of one Sarasimhacharyulu executed a deed of settlement in favour of defendant No. 1 on the footing that Narasimhacharyulu had bequeathed the lands in dispute absolutely to her under a will. The plaintiff, claiming to be the immediate reversioner, filed O. S. No. 84 of 1940 for a declaration that the settlement deed was not binding on him and the other reversioners of Narasimhacharyulu beyond the life-time of the daughter. The suit was decreed. The plaintiff, claiming to be the immediate reversioner, filed O. S. No. 84 of 1940 for a declaration that the settlement deed was not binding on him and the other reversioners of Narasimhacharyulu beyond the life-time of the daughter. The suit was decreed. After the death of the daughter, the plaintiff instituted a suit for possession. The question which was agitated before his Lordship was whether the previous decision operated as res judicata on the question that the plaintiff was the next reversioner. He held that the previous decision did not operate as res judicata on the point which I have just mentioned. Among other grounds for this decision, the learned Judge mentioned: "It is true that in the prior suit there was an issue as to whether the plaintiff was the nearest reversioner entitled to maintain the suit for a declaration of the invalidity of the settlement deed as against the reversioners. This issue was found in favour of the plaintiff, negativing the claim of a rival reversioner who claimed priority to the plaintiff. But the question then was whether the plaintiff was the then presumptive reversioner and the question now is whether the plaintiff is now the next heir of the last male owner. A decision on the former question cannot conclude the latter. The cause of action for the present suit arose only when the succession opened by the death of the limited owner, and that event took place some years after the decree in the prior suit." It was held in that case that the question whether the plaintiff was the next heir of Narasimhacharyulu when the succession opened was not barred by res judicata, and that that question had to he decided in the suit before a decree for possession could be passed in favour of the plaintiff. It is unnecessary for me to go to that extent in the present case because, as I have already said, the decision in Title Suit No. 202 of 1950 cannot be said to be a decision to the effect that no female reversioner intervened between the plaintiff of the present suit and the estate of Sheosaran. 10. It is unnecessary for me to go to that extent in the present case because, as I have already said, the decision in Title Suit No. 202 of 1950 cannot be said to be a decision to the effect that no female reversioner intervened between the plaintiff of the present suit and the estate of Sheosaran. 10. In view of the findings of fact given by the Courts below that Paudharia was a sister of Sheosaran Mahto, and that she is and was alive on the date when the succession opened, it is clear that the plaintiffs suit should have been dismissed as it was dismissed by the trial Court. Mr. Kailash Rai has, how ever, raised the question that the finding of fact given by the learned Additional Subordinate Judge on the point that Paudharia is the sister of Sheosaran cannot be accepted because the finding has not been arrived at after due consideration of the entire evidence in the case. The learned Additional Subordinate Judge has laid great stress upon two pieces of evidence. One is the statement of Musammat Razali (exhibit A) in paragraph 5 of her written statement in a suit filed by Bipati against Ram Kushun to the effect that Paudharia is the sister of Sheosaran. The other evidence which he has relied upon is the deposition of Tapeshwar in the present suit. As pointed out by the learned Munsif. Tapeshwar is a man ag ed about 75 years, and he is not interested in the result of the suit. The plaintiff says that Paudharia is the sister of Tapeshwar; but Tapeshwar says that Paudharia is not his sister but the sister of Sheosaran. It was open to the learned Subordinate Judge to accept these two pieces of evidence. I have looked into paragraphs 11 to 14 of the learned Munsifs judgment. He has given detailed reasons for rejecting the plaintiffs evidence and accepting the defence evidence on this point. Since the learned Subordinate Judge was accepting the Munsifs finding in this connection, it was not necessary for him lo repeat all the reasons given by the learned Munsif. I have looked into paragraphs 11 to 14 of the learned Munsifs judgment. He has given detailed reasons for rejecting the plaintiffs evidence and accepting the defence evidence on this point. Since the learned Subordinate Judge was accepting the Munsifs finding in this connection, it was not necessary for him lo repeat all the reasons given by the learned Munsif. An appellate Court has to discuss in some detail the reasons of the trial Court in support of a particular finding if it differs from that finding; but it is not necessary for the appellate Court to repeat all the reasons of the trial Court in support of a particular finding if it accepts that finding. In these circumstances, I am not prepared to hold that the finding of fact that Paudharia is the sister of Sheosaran is vitiated. 11. For the reasons which I have given above, I allow the appeal and dismiss the suit. The parties will bear their own costs for this Court.