Chhangu Aheer And Others v. Dukhi Aheer .

1. Second Appeal No. 2693 of 1962 arises out of Suit No. 631 of 1954 instituted by Dukhi respondent against Chhangu and others, appellants, for a declaration that plots detailed in Schedules, A, B, C and D are in possession of the respondent as bhumidhar, and for cancellation of a gift deed dated 2-9-1939 executed by Smt. Govindi, widow of Gajadhar, in favour of the appellants Chhangu and others, as also for cancellation of the compromise dated 17-7-1940 in partition suit No. 44 of 1940 (Dukhi v. Smt. Govindi) decided on 31-3-1942. Second Appeal No. 2660 of 1962 arises out of Suit No. 105 of 1956 instituted by Chhanga appellant against Dukhi and others respondents for a permanent injunction restraining the defendants from interfering with his possession over the properties of Schedules A and B.

2. In order to appreciate the facts of the case it is necessary to give a short pedigree:

3. It appears that after the death of Hannu about the year 1898 his two sons Gajadhar and Panchu succeeded to the tenancy holding described in Schedule A. It is admitted that these holdings were occupancy tenancies. Panchu died on 6-2-1915 and was survived by his brother Gajadhar. The latter also died in 1922. After the death of Gajadhar the tenancy holdings came into the possession of his widow Smt. Govindi, who succeeded to the holdings as a female tenant under Section 22 of Act II of 1901 Guman son of Panchu, was a minor aged about 8 years when Gajadhar died. Guman died in 1936 and was survived by his widow Smt. Ramraji. He had a son named Dukhi (respondent) who was born two months after Guman's death Smt Govindi widow of Gajadhar, continued to remain in cultivator possession of the tenancy plots till her death which occurred some time in 1951 or 1952. Smt Govindi had four daughters. The appellants, including Chhangu are the daughters' sons of Smt. Govindi.

4. During her lifetime Smt. Govindi executed a deed of gift on 2-9-1939 in respect of occupancy holdings described in Schedule A in favour of her daughter's sons Chhangu and others. Shortly after the execution of the gift deed aforesaid a partition suit was filed by Smt. Ramraji as next friend of her son Dukhi minor in respect of properties described in Schedule A. This suit was compromised by Smt. Ramraji and it was decreed in terms of the compromise on 31-3-1942. Under the consent decree Dukhi got a half share in Schedule A properties, the other half going to the daughters' sons of Smt. Govindi. Dukhi seeks to challenge the compromise entered into by his mother Smt. Ramraji in the partition suit on the ground that he being a minor his guardian and next friend did not obtain permission of the court as required under Order 32. Rule 7 of the CPC to enter into the compromise. He also seeks the cancellation of the gift deed dated 2-9-1939 executed by Smt. Govindi on the ground that she had a life-interest in the tenancy holding inherited by her from her husband Gajadhar and, as such, had no right to alienate it in favour of her daughter's sons.

5. It is common ground that the tenancy plots left by Hannu were occupancy holdings. During the lifetime of Hannu. Gajadhar purchased two occupancy plots Nos. 1142 and 1143, on 26-8-1888. These very plots were mortgaged by him on 6-6-1914 to third parties, vide Ex. A-30. Similarly, Gajadhar obtained a mortgage in his name on 12-5-1884, in respect of four plots, nos. 1162, 1163, 1166 and 1167, vide Ex. 17. These plots were later purchased by him under the sale deed Ex. A-6 dated 1-7-1889. He mortgaged these plots on 1-6-1909, vide Ex. A-31. Gajadhar further acquired an occupancy plot No. 1111 under a sale deed dated 17-11-1892, vide Ex. A-10, and also obtained a lease in respect of some other occupancy plots on 3-6-1891 vide Ex. A-9.

6. The case of the appellants Chhangu and others was that the properties purchased by Gajadhar in his own name were his self-acquired properties, and were not in the joint tenancy holdings of Gajadhar and his brother Panchu. The appellants claimed that they being the daughters sons of Gajadhar were entitled to inherit the said property, and have been in possession of the same. They, therefore, sought an injunction to restrain the respondents Dukhi and others from interfering with their possession over the said properties. Chhangu and others disputed the right of the respondents to challenge the validity of the gift deed and the compromise and claimed that the gift deed executed by Smt. Govindi was valid inasmuch as the said plots had been in exclusive possession of Smt. Govindi as a female tenant who succeeded to the holding as the widow of the last male holder. It was contended that the compromise entered into by Smt. Ramraji as next friend of Dukhi respondent was binding on him and the respondent was not entitled to more than a half share in the properties of Schedule A which were ancestral tenancy holdings of Hannu.

7. The learned Munsif dismissed the suit filed by the respondent Dukhi and decreed the suit filed by the appellants Chhangu and others. On appeal, the learned Civil Judge reversed the decree of the trial Court and decreed the suit of Dukhi and dismissed the suit of Chhangu and others. Hence these two appeals by Chhangu and others.

8. It is common ground that the properties described in Schedule A were ancestral in the sense that they were inherited by Gajadhar and Panchu upon the death of their father Hannu. The properties mentioned in Schedules B, C and D are those which were claimed by the appellants Chhangu and others to be self-acquisitions made by Gajadhar, and which, according to the appellants, devolved on them after the death of Smt. Govindi as the heirs of Gajadhar. The respondent Dukhi on the other hand, asserted that the plots of Schedules B, C and D were joint tenancies in the hands of Gajadhar and Panchu. After the death of Gajadhar his widow succeeded as a female tenant for her life. There being no heir in the male line of Gajadhar the tenancy plots devolved on Dukhi as reversioner of the last male tenant, namely, Gajadhar.

9. In the Courts below the main controversy centered round the question whether the tenancy plots of Schedules B, C and D were joint tenancies or whether they were self-acquisitions of Gajadhar and did not belong to the heirs of Panchu. The case of the appellants was that there had been separation between Gajadhar and Panchu after the death of Hannu and the properties purchased by Gajadhar were exclusively acquired by him from his own personal earnings and were not the joint tenancies of Gajadhar and Panchu. The lower appellate Court came to the conclusion that the purchases of tenancy plots made by Gajadhar in his name were for the benefit of the family and were joint tenancy holdings of both Gajadhar and Panchu.

10. It seems to me that on the admitted and proved facts of this case there can be little doubt that the purchases of tenancy plots in the name of Gajadhar were for the benefit of the family. Three of the sale deeds under which these purchases were made in the name of Gajadhar relate to a period when Hannu, the father of Gajadhar and Panchu, was alive. Similarly, the lease obtained by Gajadhar in his name in respect of certain plots in 1891 was also obtained during the lifetime of Hannu. It was nobody's case that Gajadhar had separated from his brother Panchu during the lifetime of his father. It was not suggested, much less proved, that Gajadhar was possessed of sufficient means to make these purchases on his own. On the contrary, the circumstances clearly go to show that Gajadhar and his brothers remained joint even after the death of their father Hannu. There is on the record a sale deed dated 30-4-1912 (Ex. A-29) executed by Gajadhar and his brothers in respect of the property mentioned in Schedule A. Had there been separation between Gajadhar and his brothers, they could not have executed a joint sale deed in respect of property which was admittedly ancestral. I am, therefore, of the opinion that the finding recorded by the lower appellate Court that Gajadhar and his brothers, including Panchu, remained in joint possession even after the death of their father, appears to be fully justified.

11. The next question that falls to be considered is whether the possession of Smt. Govindi over the properties of Schedules A, B and C and D was that of a female tenant who succeeded to the holding after the death of her husband. The present case is governed by the provisions of Section 22 of Act II of 1901. Section 22 reads as follows:

“When an ex-proprietary tenant, an occupancy tenant, or a non-occupancy tenant (other than a thekadar) dies, his interest in the holding shall devolve as follows:

(a) on his male lineal descendants in the male line of descent; and

(b) failing such descendants, on his widow till her death or re-marriage; and

(c) failing such descendants, and widow, on his brother, being a son of the same father as the deceased; and failing any such heirs as above mentioned,

(d) on his daughter's son; and

(e) failing such daughters son, the nearest collateral male relative in the male line of descent;

Provided that no such daughter's son or collateral relative shall be entitled to inherit who did not share in the cultivation of the holding at the time of the tenant's death”.

12. Smt. Govindi being the widow of Gajadhar succeeded as a life tenant under Cl. (b) of S. 22, there being no male lineal descendants in the male line of Gajadhar, Since Gajadhar died when Act II of 1901 was in force, Smt. Govindi became entitled to succeed to the holding as the widow of the last male holder. Her interest was, however, limited and would come to an end on her death or re-marriage. She died in 1951 or 1952 when the U.P Tenancy Act XVII of 1939 was in force. Section 36 of the Act provides for succession to a female tenant holding an interest inherited as a widow. It says that—

“when a female tenant who either before or after the commencement of this Act has inherited an interest in a holding as widow dies,……such holding shall, notwithstanding anything in S. 45, devolve in accordance with the order of succession laid down in S. 35 on the heir of the last male tenant.”

13. Clause (a) of S. 35 says that when a male tenant other than a tenant mentioned in S. 34 dies, his interest in a holding shall devolve in accordance with the order of succession given thereunder. Clause (a) of that section gives a preferential right of succession to male lineal descendants in the male line of descent.

14. It will be seen that even under Section 24 of Act III of 1926 a preferential right of succession was accorded to the heirs of the last male tenant after the death of the widow. The right was made subject to the condition that the heir of the last male tenant was shown to have shared in the cultivation of the holding at the time of the tenant's death. By Section 36 of the U.P Tenancy Act of 1939 no such condition is attached to the right of succession by the heir of the las) male tenant.

15. In Dular Pandey v. Nanda Budhai, 1938 All LJ 585 : (AIR 1938 All 396 (FB)) the question referred for decision to the Full Bench was whether upon the death of the widow of an occupancy tenant the holding would devolve under Section 25(1) or Section 25(2) of Act III of 1926. There an occupancy tenant died while the Agra Tenancy Act of 1901 was in force. He was succeeded by his widow under Section 22 of that Act. The widow died after the Agra Tenancy Act of 1926 had come into force and the question arose whether the tenancy devolved upon the nearest surviving heir of the last male tenant in accordance with the table of succession for occupancy tenancies or whether the tenancy devolved upon the heirs of the widow under Section 25(2) of the 1926 Act. That was a case in which the widow who succeeded to the holding after the death of the last male tenant died in 1931 when the Act III of 1926 was in force. It was held that the succession was governed by Section 25(1) of the 1926 Act, provided the nearest surviving heir of the last male tenant was proved to have shared in cultivation with him.

16. The legal position obtaining now is that under Section 36 of the U.P Tenancy Act, 1939 after the death of the widow the tenancy will devolve on the nearest surviving heir of the last male tenant irrespective of the fact whether he was cosharing with him or not.

17. The status of Smt. Govindi was that of a female tenant whose right of possession was limited during her lifetime. She could not, therefore, validly transfer any part of the holding and create rights in favour of a party contrary to the line of succession laid down in S. 36. The gift deed therefore, was clearly unlawful and liable to be set aside. As regards the compromise entered into by Smt. Ramraji on behalf of her minor son in partition suit No. 44 of 1940, the fact is that she was a next friend representing her minor son in the suit. She could not enter into a valid agreement or compromise without leave of the Court expressly recorded in the proceedings. There is no order on the record permitting Smt. Ramraji to make the compromise on behalf of her minor son. It was contended on behalf of the appellants Chhangu and others that the compromise having been acted upon and a decree in terms of the compromise having been passed by the Court, there was a presumption that the leave of the Court was granted to the next friend. The language of Rule 7 of Order 32 is not susceptible of a presumption being raised in favour of an agreement or compromise entered into on behalf of a minor without an order of the Court on the contrary. Rule 7 is mandatory in terms and requires the guardian or next friend of the minor to obtain leave of the Court for entering into a compromise, and such permission must appear expressly in the proceedings of the Court. There was neither an application seeking leave of the Court to enter into a compromise nor was an express order passed by the Court to that effect. Consequently, the compromise dated 16-7-1940 was wholly illegal and ineffectual and did not in any way affect the rights of Dukhi minor in respect of the subject-matter of the partition suit.

18. The result of the above discussion is that the appellants have no right to succeed to the property left by Gajadhar in the presence of the respondent who is the nearest heir in the male line of descent of the last tenant. Both the appeals fail and stand dismissed. In the circumstances of this case, however, the parties will bear their own costs of these appeals.

LI/H.G.P/D.V.C

19. Appeals dismissed.