Sahdeo Singh and Others vs Kishun Behari Pandey and Others

Sen, J.—The plaintiffs-appellants instituted a suit for declaration of their title to and for recovery of possession of 2 bighas 6 kathas and 19� dhurs of land which they had purchased by a kobala, dated the 31st January 1917, but from which they alleged that they had been dispossessed by the respondents in June 1920. The kobala was executed by one Mahaoti Ojhain, one of the two daughters of one Sham Lal Ojha, and the said vendor purported to convey the entire half-share inherited by her as heir of her father, Sham Lal Ojha. The respondents, on the other hand, contended that the entire properties alleged by the plaintiffs-appellants to have been owned by Sham Lal really belonged to Sham Lal''s widow, Mahaoti Ojhain, who had acquired her interest therein under two sanads; that the said widow had by a deed of gift, dated the 30th June 1905, conveyed her interest to Damodar Ojha, grandson of Sham Lal Ojha, by his other daughter Bhagawati Ojhain, who in turn purported to sell the entire interest for a sum of Rs. 1,300 by a kobala, dated the 5th November 1919. The Munsif gave a decree in favour of the plaintiff. He found that the kobala put forward by the plaintiff was genuine, that the entire property had really been Sham Lal''s, having been acquired by him and that, therefore, Mahavati Ojhain, as one of his two daughters, was entitled to a half share therein and had validly alienated that share in favour of the plaintiffs-appellants. The learned Subordinate Judge affirmed these findings arrived at by the Court of first instance and also found that the alleged deed of gift by Sham Lal''s widow in favour of Damodar Ojha, was illegal and invalid, and that it had not been acted upon. He then proceeded to consider the question as to whether the alienation by Mahaoti Ojhain was under circumstances of legal necessity. He found that there was no legal necessity for the transfer and thus concluded that the kobala executed by her could not bind the property so conveyed.

It is urged before us by the learned advocate appearing for the appellants that in any event the alienation in favour of the plaintiffs would be binding during the life time of Mahaoti Ojhain and that, therefore, the Court of appeal below was in error in dismissing the suit altogether. On behalf of the respondents it is conceded that a daughter could alienate her share in the inheritance, such alienation being good only for her lifetime, but what is questioned is that a definite plot of land, such as, the one the subject-matter in this suit could not be sold.

It is also urged by the learned advocate for the respondents that the Court of appeal below appears to have come to a finding that the kobalas in favour of the appellants, as well as that in favour of the respondents are both collusive documents and that, therefore, the proper course for the Court of appeal below was to dismiss the suit.

With regard to the first point it is clear that Mahaoti Ojhain being a limited owner was not entitled to alienate the property absolutely without there being legal necessity therefor. She could not bind the inheritance for her own personal debts or private purposes as against reversioners, but she could do so only for her own life. It is also clear on the authorities that a daughter can alienate her own life interest and effect can be given to such alienation by partition sought at the instance of the alienee. In the present case Mahaoti Ojhain purported clearly to transfer the land in question as representing her half-share in the inheritance. That being so, there does not appear to be any difficulty in the way of giving a declaration in favour of the plaintiffs-appellants that they are entitled to the half-share of Mahaoti Ojhain in the inheritance, such interest to enure only for the lifetime of Mahaoti Ojhain. The plaintiffs-appellants must be left to such course as they may be advised to take for the purpose of getting partition of their acquired share according to law. But it is impossible in the circumstances of this case to grant the prayer for possession asked for in the plaint.

With regard to the second point it does not at all appear clear that the learned Subordinate Judge has come to a definite finding upon proper materials that the kobala in favour of the appellants was a collusive document. No doubt an observation to that effect appears in the last paragraph but one of the judgment. But it seems hardly to amount to a finding of fact and cannot be taken to dislodge the clear finding of fact arrived at by the Court of first instance, after a due consideration of the evidence that the plaintiff''s kobala was genuine and for consideration. Moreover, a case of collusion does not arise under the circumstances. It has been found that the estate was of Sham Lal Ojha''s, that the plaintiff''s vendor, one of the daughters of Sham Lal, was entitled to a half-share thereof, and that she parted with that interest in favour of the vendor, the vendor admitting that the kobala was genuine and for consideration. No case of collusion between the vendor and the vendee can arise in these circumstances and no such case was put forward in the pleadings.

The appeal will, therefore, be allowed in part. It is declared that the appellants are entitled to the half-share of their vendor, Mahoati Ojhain in the estate of her father, Sham Lal Ojha without prejudice to the rights of the reversioner or reversioners, if any, upon the death of Mahaoti Ojhain. The appellants are entitled to their costs from the respondents.

Adami, J.

I agree.