Laloo Prasad Singh and Others vs Lachman Singh and Others

Dawson Miller, C.J.—The suit out of which, this appeal arises was instituted on the 12th March 1919 by the plaintiffs as the sons of Dukhi Singh claiming a declaration that certain land measuring 367 acres and which previously belonged to their father''s brother, Sheo Sahai Singh, was their kasht land and that they were entitled to retain possession of the same. As a matter of fact they were not in possession at the date when the suit was instituted because the land owing to disputes between the plaintiffs and the superior landlord, the defendant No. 1, had been attached by the Magistrate in proceedings u/s 146 of the Criminal Procedure Code. The case made by the plaintiffs in their pleading was that their father, Dukhi Singh, and their uncle, Sheo Sahai Singh, had separated many years ago and that the land in suit after separation belonged to their uncle, Sheo Sahai, but that recently, when Sheo Sahai and his wife grew old and the plaintiffs'' father was dead, the plaintiffs and their uncle had re-united and on the death of their uncle the latter''s interest devolved on them by survivorship, and they entered into possession. In the alternative they pleaded that even if the plaintiffs and Sheo Sahai were not joint when the latter died in 1917 he left no male issue, and after his wife died (also in 1917) his next heir was his daughter, Musammat Marachi Kuer, the defendant No. 2, and that the plaintiffs were the next reversionary heirs entitled to succeed on the death of Marachi Kuer, but that she did not want to have the estate left by her father, Sheo Sahai Singh, but stood aside and gave up her claim and that consequently all the property left by him came into their possession.

Some time shortly before this suit was instituted the landlord, who is the first defendant in the suit, had instituted proceedings u/s 87 of the Bengal Tenancy Act claiming possession of the land on the ground that it had been abandoned by the tenant, Musammat Marachi Kuer. What exactly was the result of those proceedings does not appear from the record before us but at the same time criminal proceedings were taken u/s 145 of the Criminal Procedure Code with the result that the Magistrate, presumably being uncertain as to who was in possession of the property, attached the property u/s 146 of the Criminal Procedure Code with the result that the plaintiffs have instituted the present suit claiming the declaration which I have stated.

The second defendant, Musammat Marachi Kuer, entered no appearance and filed no written statement. The landlord, however, the defendant No. 1, did appear and filed a written statement in which the allegations set out in the plaint are traversed and he further set up a case that Sheo Sahai Singh and Dukhi Singh were separate, that no daughter was ever born to Sheo Sahai Singh and that he never had any heir at all and that the landlord had after Sheo Sahai Singh''s death entered into possession of the disputed land. He denied that Sheo Sahai Singh and Dukhi Singh were brothers or any relation or that the plaintiffs had any locus standi to institute the suit.

The learned Munsif before whom the case came for trial found in favour of the plaintiffs. He held that the brothers, Sheo Sahai Singh and Dukhi Singh, were not joint, that when Sheo Sahai Singh died his daughter, the defendant No. 2, was the next heir but that she had disclaimed, to use the learned Munsif''s own word, her rights in favour of the plaintiffs. He found that she never succeeded to the property of her deceased father and that, therefore, it was not a relinquishment but as she did not succeed at all it must be taken that what she did was a disclaimer on her part of her rights to the estate of her deceased father and that in these circumstances the plaintiffs were entitled as the next heirs to the estate. I may point out that there was no evidence at all apparently before the Court to the effect that Musammat Marachai Kuer had relinquished her rights or disclaimed her rights in favour of the plaintiffs except that she did not defend the suit. Indeed the attitude, as appeared from a subsequent petition, taken up by that lady was that she had no rights at all, that her father''s family and that of her uncle were joint and that her only right was that of maintenance.

The case went on appeal to the Subordinate Judge who reversed the decision of the Munsif and dismissed the plaintiff''s suit, because, although he considered that a Hindu widow or daughter could, by relinquishment of her limited right in her husband''s or father''s estate, accelerate the reversion, he found as a fact that such a case had not been made out in the plaint or made out in the evidence adduced by the plaintiffs. There was no documentary or oral evidence to prove that before the institution of the suit the defendant No. 2 had relinquished her right in the land in favour of the plaintiffs. That was a distinct finding of fact in favour of the defendants'' case and against that of the plaintiffs and by that finding of fact this Court in second appeal is bound. It appeared, however, that during the progress of the appeal before the Subordinate Judge a petition, a copy of which had been placed before us to-day, was filed purporting to be on behalf of the defendant No. 2, who up to that moment had taken no part in the case, alleging in the first instance that she had no right or title to the property left by her father, Sheo Sahai Singh, and that in any event she gave up and disclaimed any right she might have in favour of the plaintiffs, her cousins. The learned Subordinate Judge considered that the plaintiffs were not entitled at that stage to rely upon this petition or to use it in any way when they had not in their pleadings set up such a case. He pointed out that all that had been mentioned in the pleadings was that Sheo Sahai Singh''s daughter, the defendant No. 2 had stood by and had not claimed the estate. He considered that such an allegation in the plaint could not be regarded as being consistent with, far less amounting to a plea of relinquishment by the defendant No. 2 in favour of the plaintiffs which was the course then taken by her in the petition.

When the case came before the learned Judge of this Court in second appeal he considered that there had been raised by the plaint an alternative case of a relinquishment by the defendant No. 2 in favour of the plaintiffs and as the defendant No. 2 had not appeared and contested this allegation it must be taken as proved. He, therefore, overruled the decision of the Subordinate Judge and granted the declaration asked for in favour of the plaintiffs.

In my opinion the learned Judge''s decision on this point cannot be sustained. The mere fact that the defendant No. 2 did not enter appearance or contest the suit is not, in my opinion, sufficient to bind the defendant No. 1, the landlord, so as to preclude him from either giving evidence or from contesting the allegation of the plaintiffs, even if such an allegation had been made that there was a relinquishment in favour of the plaintiffs by the defendant No. 2. When the case came for trial there was absolutely no evidence at all of any such case. The most that could be said or the most that could be inferred from the evidence was that the defendant No. 2 did not actively assert any claim to the property in suit. Indeed the attitude taken up by her was that the parties were all joint and, therefore, that, her only right was that of maintenance. Anything in the nature of an actual relinquishment of the right in favour of the plaintiffs could never in the circumstances have taken place. Whether or not the learned Subordinate Judge was right in saying that no notice could be taken of the petition filed on behalf of the defendant No. 2 in the appellate stage of the case, is not a matter which it is necessary for us definitely to determine because looking at that petition the most that could be said in favour of the plaintiffs is that although at the date when the suit was instituted there had been no relinquishment in their favour the defendant No. 2 was during the appellate stage of the case apparently willing to relinquish in their favour but as the judgment of the Court must depend upon the rights of the parties at the date when the suit was instituted it seems to me that the finding of fact of the learned Subordinate Judge in first appeal was amply justified by the evidence before him and it is not open to this Court in second appeal to disturb that finding of fact. The result is that the decision of the learned Judge of this Court will be set aside and the decision of the learned Subordinate Judge will be restored. In the circumstances I think that the appellant is entitled to his costs of this appeal and of the appeal before Mr. Justice Ross. The order of the Subordinate Judge as to the costs before the Munsif and on first appeal will stand.

I ought to mention that this decision does not determine one way or the other anything as to the right of the landlord to enter into possession of this property. All that is necessary and all that is determined by this decision is that at the date when this suit was instituted the plaintiffs had not made out that they had any right or title to the property. I understand that the property is still under attachment by the Magistrate and the question of who is entitled to possession has yet to be determined. If the plaintiffs in this suit can satisfy the Magistrate when the question of possession, again arises that Musammat Marachi Kuer, who is undoubtedly the person entitled to succeed on the death of her father and mother to this property, has relinquished her rights in favour of the plaintiffs by way of accelerating the succession then the Magistrate will be perfectly justified in handing over possession of the property to the plaintiffs because the result of the judgment in the present case is that Musammat Marachi Kuer is the person really entitled to the property on the death of her father and mother and the only reason why the plaintiffs fail is because they have failed to make out that at the date of this suit there had been any relinquishment in their favour.

B.K. Mullick, J.

I agree.