Babuial vs Brij Gopal & Ors.

Sudhir Narain, J.—This defendant''s second appeal is against the partition decree passed by the trial Court and affirmed by subordinate appellate Court.

The following relevant pedigree will make position clear as regards the rights of the parties in the property in dispute:

Ghasi Ram

WidowMaharani

(Daughter) (Daughter)

VidyaBai BundaBai

(son)

Brij Gopal (Plaintiff)

Ghasi Ram had purchased the property in dispute from one Lala Gopal. He died leaving behind him his widow Maharani and two daughters, namely, Vidya Bai and Bunda Bai. On death of Maharani, her two daughters inherited the property in dispute. Bunda Bai died some times in the year 1950. She was succeeded by her son Brij Gopal.

Brij Gopal filed Suit No. 64 of 1991 for partition against Babu Lal,Ram Kishan and Mahipal on the allegation that Maharani died leaving behind her two daughters. They equally inherited the rights in the property inquestion. He is son of Bunda Bai and is entitled to half share in the property. An application for amendment of the plaint was filed alleging further that Vidya Bai had executed a Bakshishnama on''211946, whereby she made gift of her entire property in his favour. The suit was contested by the defendants. Babu Lal defendantappellant alleged that Bunda Bai had only lire interest and as she died prior to the year 1956, her rights and title were inherited by Vidya Bai, who was the next reversioner and the plaintiff did not get any right in the property in dispute.

She became absolute owner of the property in the Year 1956 after enforcement of Hindu Succession Act, 1956. She had sold the property in question to one Chandra Bhan on 19 966. Chandra Bhan sold it to Babu Lal,the appellant on 3111969. He has been in possession of the property in dispute. It was denied that Brij Gopal was son of Bunda Bai and the defendants second set, namely, Ram Kishan and Mahipal based their claim that they had obtained ''patta'' from the Gaon Sabha in respect of the disputed land and the plaintiff has no right and title to the property in question.

The trial Court framed various issues and held that the plaintiff was son of Bunda Bai. On the death of Maharani her both the daughters, namely, Bunda Bai And Vidya Bai inherited the rights in the property and the plaintiff is entitled to half share in the property. The suit was, accordingly, decreed for partition. The claim of defendant Nos. 2 and 3 was rejected on the finding that Gaon Sabha had no right to execute any ''patta'' in favour of Defendant Nos. 2 and 3. Babu Lal filed an appeal against the judgment of the trial Court. The appellate Court has dismissed the appealon28ll1998.

It is undisputed that the two daughters succeeded to their mother but their interest was limited under Hindu Law. Bunda Bai died prior to the enforcement of Hindu Succession Act, 1956. On her death her rights will not be inherited by her son Brij Gopal but the next heir of her father, namely, her sister Vidya Bai in accordance with the principles of succession under Hindu Law (vide (1879) 61 A 15, Chotey Lall v. Chunno Lall, (1881) 8 LA. 99, Muttav.Dorasinga Tevari, I.L.R. (1878) 1 All 608 Baijnath v. Mahabir and ILR (1886) 8 Allahabad 365, Sant Kumar v. Deva Saran.

The core question is the effect of the execution of Bakshishnama executed by Vidya Bai, the next reversioner in favour of Brij Gopal son of Bunda Bai. A presumptive reversioner is entitled to enter into a compromise of relinquish his share in favour or the next reversioner. Brij Gopal, after the death of Bunda Bai, his mother, was the next reversioner in respect to the estate of Vidya Bai. Vidya Bai having executed a Bakshishnama in favour of Brij Gopal and having put him in possession, the transferee from Vidya Bai is estopped from challenging the same. In Krishna Beharilal v. Gulabchand and others, AIR 1971 Supreme Court, 1041, it was held that where under a compromise the presumptive reversioners purported to give a portion of the suit properties absolutely to the widow in consideration of her giving up her claim in respect of the other properties, they would be estopped from contending that they are entitled to succeed to the properties given to the widow. The Apex Court in S. Shanmugam Filial and others v. K. Shanmugam Pillai and others, AIR 1972 Supreme Court 2069, clarified that there are three classes of estoppels that may arise for consideration in dealing with reversioner''s challenge to a widow''s alienation. They are: (1) that which is embodied in Section 115 of the Evidence Act, (2) election in the strict sense of the term whereby the person electing takes a benefit under the transaction; and (3) ratification i.e. agreeing to abide by the transaction. A presumptive reversioner coming under any one of the aforesaid categories is precluded from questioning the transaction, when succession opens and when he becomes the actual reversioner.

After the death of Bunda Bai if it is taken that Vidya Bai as the next reversioner succeeded to her, she was bound by Bakshishnama which she had executed earlier unless it was shown to have been obtained by duress, undue influence or fraud. The deed was executed not in favour of any stranger but to the next reversioner i.e. son of Bunda Bai. Vidya Bai, during her life time never challenged the said deed. It has further been found that Vidya Bai had not executed the saledeed to Chandra Bhan in respect of the property in respect of which she had executed Bakshishnama.

The reversioner is otherwise also entitled to surrender his rights in favour of the next reversioner. In this connection a passage from Mulla''s Principles of Hindu Law (para 197, 14th Edition) is quoted:

"It is settled by long practice and confirmed by decisions that a Hindu Widow can renounce in favour of the nearest reversioner if there be only one, or of all the reversioners nearest in degree if they are more than one at the moment. That is to say, she can, so to speak, by voluntary act operate her own death. The principle on which the whole transaction rests is the effacement of the widowan effacement which in other circumstances is effected by actual death or by civil death which opens the estate of the deceased husband to his next heirs at that date".

The Courts below have recorded concurrent findings that the plaintiffrespondent has been in possession over the property since the date of execution of Bakshishnama, in his favour. The appellant having not filed any suit for possession against him, during the period of limitation for ejectment, cannot claim that he is now exclusive owner of the property in dispute.

I do not find any merit in this second appeal and it is, accordingly, dismissed.