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1918 (10) TMI 1

consolidated appeal from a judgment and four decrees of the High Court of Calcutta arises but of four suits brought by the plaintiffs in June, 1906, in the Court of the first Subordinate Judge of Gaya. The object of the suit, was to obtain possession of certain specific landed properties which originally belonged to one Ram Dyal Singh, who died so long ago as 1845. These four actions were separately decreed by the Subordinate Judge. On the defendants' appeals the High Court dismissed two of the suits and in the two others varied the first Court decrees. The plaintiffs perferred four appsals to their Lordships' Board which were subsequently consolidated. After the appeals ware filed two of the suits were compromised. The present appeal is thus confined to the two decrees of the High Court in suits Nos. 99 and 101 of 1906, respectively. A short statement of the facts relating 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 .....

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dar's death in 1894. It will be observed also that Maha Sundar had a daughter, Bhawani Kunwar, who was married to one Tukanath. She appears to have died in 1884, leaving her surviving a son, Hanuman Sahay; and on the 30th April, 1895, Sheo Sahay and Bal Gobind Sahay as the nearest reversioners, conveyed all their right, title and interest, in the properties in suit to Hanuman Sahay. Hanuman died in February 1906, leaving him surviving the plaintiffs, Gur Narain and Sheo Charan, his sons and heirs. On the 2nd July, 1906, Gur Narain and Sheo Charan conveyed a half share of their interest in the said properties to one Mohesh Lal, and these three persons brought the four suits against the different alienees of Maha Sundar for setting aside her transactions and for recovery of possession. The defendants, among other pleas, challenged the right of Mohesh Lal to maintain the 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 th .....

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t where a feoffment is made without consideration the use results to the feoffor." So long, therefore, as a benami transaction does not contravene the provisions of the law the Courts are bound to give it effect. As already observed, the benamidar has no beneficial interest in the property or business that stands in his name; he represents, in fact, the real owner, and so far as their relative legal position is concerned he is a mere trustee for him. Their Lordships find it difficult to understand why, in such circumstances, an action cannot be maintained in the name of the benamidar in respect of the property although the beneficial owner is no party to it. The bulk of judicial opinion in India is in favour of the proposition that in a proceeding by or against the benamidar, the person beneficially entitled is fully affected by the rules of res judicata. With this view 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 considerat .....

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bu Ramdayal Singh, deceased, inhabitant of mouza Jagarnathpur, pargana Maher, and at present of mouza Sugrigrandi, pargana Pachrukhi; Mussummat Bhawani Kunwar, eldest daughter of Mussummat Mahasundar Kunwar aforesaid and Chowdhri Hanuman Sahai, son of Mussummat Bhawani Kunwar aforesaid and grandson by daughter of Mussummat Mehasundar Kunwar aforesaid, all inhabitants of mouza Samhri, pargana Roh, district Gaya, by occupation zamindars." The deed then goes on to say as follows :- "Whereas the entire 16 annas of mouza Amhara, appertaining to lot Sugrigrandi ........ has been and is in the possession of me, Mussummat Mahasundar, subsequently I, Mussnmmat Mahasundar Kunwar, had granted in gift mouza, Sugrigrandi, Kulna Surajpura, Amhara, Harna Sikaria, Buksouti, Ghazipur and Bahpuri Majrahi,appertaining to the said lot Sugrigrandi, to Mussummat Bhawani Kunwar, my eldest daughter, 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 aft .....

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chaser. For the proceedings in the suit of Anugrah against Maha Sundar and the decision of this Board in Ramanugra Narain v. Mahatundar Kunwar, [1873] 12 B.L.R. 433 = 3 Sar. 277 (P. C.), are recited in the conveyance in question. Their Lordships in that case expressly confined the adjudication to the parties to the suit. They did not enter upon a consideration of the question whether Maha Sundar had the power to make the gift or gifts which were in controversy in that action. The declaration made by the Board could not enlarge the power of Maha Sundar to deal with the properties she held as the heiress to her son to the prejudice of the son's reversioners. The vendee was entering into a transaction with a Hindu female. It lay upon him to acquaint himself with the extent of her powers. He was in full possession of the proceedings in Ram Anugrah's suit and the facts connected with the Mitakshara 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 Lordsh .....

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a contingent reversioner to Maha Sundar. The title on which the plaintiffs have brought their suit is based on an independent purchase by Hanuman from the rightful heirs. Their Lordships are of opinion that the view of the learned Judges on the question of estoppel cannot be sustained. Suit 101 relates to three properties called respectively Thali Khurd, Budhwara and Korianna, which were sold by Maha Sundar in 1854 for alleged legal necessities to the predecessors of the present defendants. The sale deed is not forthcoming, and some evidence has been given of its loss which the High Court have accepted, and their Lordships are not prepared to dissent from their decision that the defendants had proved the sale of 1854. Their Lordships further agree with the learned Judges that legal necessity to the extent found by them has been established. In the result, therefore, their Lordships are of opinion that in suit 99 of 1906 (Appeal 2 of 1911) the decree of the High Court should be reversed and that of the Subordinate Judge restored; and that in suit 101 of 1906 (Appeal 3 of 1911) the decree of the High Court should be varied by the inclusion of the name of Mohesh Lal, and that the decr .....

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