TMI Blog1918 (10) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... to this family will explain the nature of this litigation. Ram Dyal had left him surviving a widow named Birja Kunwar and two married daughters named respectively Sham Sundar Koer and Maha Sundar Koer. It is stated that before his death he had made an oral disposition by which he had devised the bulk of his property to his two grandsons, one named Ajodhya, the son of Sham Sundar, and the other Sheo Charan, the son of Maha Sundar, subject to a life interest in his widow, Birja Kunwar. Both the Courts below have found in favour of this disposition, and it may now be accepted as undisputed that the two grandsons under Ram Dyal's will obtained vested interests in the properties specifically devised to them. The villages which form the subject of the four suits were given to Sheo Gharan. Birja Kunwar died in 1851, and on her death the properties devised to Ajodhya and Sheo Charan vested in them absolutely. Sheo Charan died in 1852, and on his death the villages devised to him under the will of his grandfather came into the possession of Maha Sundar Koer by virtue of her right to succession as a Hindu mother. Maha Sundar purported to deal with these properties in her lifetime; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he action in respect of his share as he was only a benamidar for a person named Rafiuddin. Secondly, they contended that as Hanuman Sahay was a party to the conveyance by Maha Sundar in respect of mauza Arnhara, he and his heirs were estopped from questioning that particular transaction. And they pleaded generally that all the transactions that were impugned were entered into for justifiable necessity. The trial Judge held against the defendants on all points, and made a decree in favour of the plaintiffs. The learned Judges of the High Court of Calcutta, on the appeal of the defendants, have taken a different view. They have held, firstly, that as Mohesh Lal is alleged to be a benamidar, his claim in respect of the moiety claimed by him must be dismissed. They also held, differing from the trial Judge, that in respect of the village of Amhara, Hanuman Sahay being a party to the transaction, his heirs, the plaintiffs, were estopped from disputing the validity of the sale. With regard to the three villages involved in suit No. 101, they came to the conclusion that a part of the consideration for the sale was proved to have been applied in the payment of debts due from the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew their Lordships concur. It is open to the latter to apply to be joined in the action; but whether he is made a party or not, a proceeding by or against his representative in its ultimate result is fully binding on him. In case of a contest between an alleged benamidar and an alleged real owner, other considerations arise with which their Lordships are not concerned in the present case. Here the learned Judges of the High Court, differing from the trial Judge, have held that there were grounds for supposing, or rather suspecting, that the purchase by Mohesh Lal of a moiety of the villages in suit was for the benefit of Rafiuddin, and as he did not join in the action they dismissed Mohesh Lal's claim. Mohesh Lal had persistently denied the defedant's allegation that he was a benamidar for Rafiuddin and had no beneficial interest in the property; nor does Rafiuddin appear to have put forward a claim adversely to Mohesh Lal. In these circumstances it appears to their Lordships that the decree of the High Court dismissing his claim in both suits on the ground that as a benamidar he was not entitled to maintain the actions, is unsustainable. The High Court further held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, and Mussummat Gir Kunwar, my youngest daughter, with a view to avoid future disputes under deeds of gift, dated the 28th August, 1868.....in equal shares of 8 annas, with conditions that during the lifetime of mine, Mussummat Mahasundar Kunwar, I shall continue in possession of the same, and that after the death of me, Mussummat Mahasundar Kunwar Mussummat Bhawani Kunwar should get possession of 8 annas and Mussnmmat Gir Kunwar, of the other 8 annas. But the said Mussummat Gir Kunwar died in 1862 and Babu Ram Anugrah Narayan, husband of the said Mussummat Gir Kunwar, deceased, instituted a suit in the Civil Court of Gaya in respect of 8 annas of the said mouzas, and fought the case from the District Court to the Privy Council, and according to the final judgment of the Privy Council, dated the 27th June, 1873, it was held that I Mussummat Mahasundar Kunwar, one of the executants, should remain in possession of all the aforesaid properties; that, after the death of me, Mussummat Mahasundar Kunwar, I, Mussummat Bhawani Kunwar eldest daughter, should obtain possession of 8 annas and Babu Ram Anugrah Narayan, husband of Mussummat Gir Kunwar deceased, should obtain possession of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... takshara family. The evidence of his witnesses shows that enquiries were made on his behalf and that he had even some legal advice. Whether these measures were adopted with the object of creating grounds of defence in some future action by reversioners or were bona fide enquiries, their Lordships have little doubt on the facts that the Mahant purchaser had full knowledge of the powers and disabilities of the vendor. At this time Hanuman had no interest of any kind in the property. Maha Sundar had held it as a Hindu mother by right of succession to her son Sheo Charan. On her death it would pass to his heirs. Hanuman's mother was alive at the time of the sale; whatever interests they had were of a purely contingent character. It is quite evident that they were joined as parties to the conveyance at the instance of the vendee as a piece of precaution. Whether the vendee entered into the transaction in the belief that Maha Sundar's title was derived, as she described in the sale deed, from her mother, or whether he knew, as is more probable from the circumstances, that she was in possession of the property as heiress to her son, he must have known that Hanuman had no assign ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
