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Baru Gir vs Mahant Tulshi Das

High Court Of Judicature at Allahabad|24 February, 1910


1. The circumstances of the case out of which this appeal has arisen are as follows:
One Ghasi Gir died leaving a widow, Musammit Ganeshi, and two sons, Kishen Gir and Bishen Gir. Bishen Gir died in 1892. Kishen Gir died in 1905. On the 14th March 1898, while Kishen Gir was still alive and a minor, Musammat Ganeshi executed a sale-deed in lieu of. Rs. 1,000 in favour of a transferee whose rights have been acquired by the present respondent. It is necessary to note that on the death of Ghasi Gir, the names of his sons and widow were recorded in the revenue papers, and in the sale-deed Musammat Ganeshi described herself to be the owner of the property which she sold and purported to transfer the full right of ownership. On the 12th March 1907, after the death of Kishen Gir, she similarly transferred other property, which has come to the hands of the present respondent. On the 27th August 1907, the present suit was instituted by the plaintiff, who is the next reversioner entitled to possession of Kishen Gir's estate, on the death of Musammat Ganeshi. He sued in respect to both the transfers and asked the Court to grant him a declaration to the effect that the sale-deeds were void and ineffectual as against his rights on the death of Musammat Ganeshi, on the ground that the transfers had been made by her without lawful necessity. The defendant raised the question of necessity and also pleaded that the plaintiff had been a consenting party to the transfers. The Court of first instance found in the case of both the sale-deeds that in respect to certain sums, the transfers were for legal necessity. The defendant, appealed and in respect of the sale-deed of 12th March 1907, the decision of the first Court was upheld. In respect of the transfer of 14th March 1898, the lower appellate Court held that the plaintiff bad no cause of action and on this ground dismissed the suit in respect thereto without going into the question of legal necessity. The grounds of the lower Court's decision are as follows: That Musammat Ganeshi when she executed the sale-deed of 14th March" 1898, was not in possession of the property as a Hindu female with only a life-interest, that she was in possession, as far as could be seen, as guardian of her minor son; that Kishen Gir, who was the real owner of the property permitted his mother to dispose of the property and did not question the transfer and, therefore, the plaintiff has no right to raise the question.
2. It is admitted on behalf of the appellant that the transfer by Musammat Ganeshi of 14th March 1908, was null and void, even assuming that she purported to transfer it as guardian of the minor. It is urged, however, that on the death of Kishen Gir, that sale-deed became operative under the terms of Section 43 of the Transfer of Property Act, and that the plaintiff, therefore, had at once a right to bring a suit, such as is contemplated in Article 123, Schedule II of the Limitation Act. In oar opinion, this argument is well-founded. It is urged on the other hand, that Kishen Gir's remedy wasonly a suit for possession, that time began to run against him from the date of the sale-deed and that to grant any declaration to the present plaintiff would be useless to protect his interest, because any suit for possession by him would after 24th March 1910, be barred by limitation and that, therefore, the Court should not in its discretion grant a declaratory relief which would be of no effect. In our opinion this argument overlooks the fact that on the death of Kishen Gir, the sale-deed in question at once began to operate as a transfer by the widow of any interest which she might have had in the estate of her son. It is upon the death of Kishen Gir that the cause of action accrued to the plaintiff for the declaration which he now seeks. He cannot sue for possession at present. There is distinctly a cloud cast upon his right as a reversioner and it is necessary in order to protect these rights, that a declaration should be granted, as it is impossible to say when the widow may die and on the date of her death any evidence, which he may have, may by chance have disappeared. In this view, it is necessary to refer the issue as to legal necessity which was not decided by the lower Court, in respect to this sale-deed, for decision, namely, to what extent was the sale of 14th March 1-98 justified by legal necessity ? On the return of the findings, ten days will be allowed for objections. No further evidence need be taken in the case.
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Baru Gir vs Mahant Tulshi Das


High Court Of Judicature at Allahabad

24 February, 1910
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