Pursottim v. Rajpati

Shearer, J.:— The petitioner is the plaintiff in a suit in which he seeks to recover possession of certain property as the reversionary heir of one Abhilakh Choubey who died a great many years ago. Abhilakh Choubey was survived by his widow, Musammat Pachratna Kuer, and during her lifetime Musammat Pachratna Kuer executed certain deeds alienating part of the property in suit. The court-fees which were paid on the plaint were paid under section 7(v) of the Court-Fees Act and the learned Subordinate Judge has directed that ad valorem court-fees under section 7(iv)(c) should be paid. The ground on which the learned Subordinate Judge made this order was that the deeds executed by Musammat Pachratna Kuer were

“voidable documents for which the plaintiffs should pray for setting them aside, and this prayer is necessarily involved in “their prayer for recovery of possession”.

The learned Subordinate Judge relied on Ramautar Sao v. Ram Gobind Sao*. These decisions are no doubt authorities for the proposition that it is not open to a plaintiff to ask merely for a declaration that a certain document is not binding on him, he or his predecessor-in-interest having been induced to execute it in consequence of some fraud practised on him. Then the suit is in substance not merely a suit for a declaration but also a suit for consequential relief as the document, in such a case, is, in fact, binding on him unless and until if is cancelled and unless and until that is done he cannot recover possession of the property which has been transferred by the document. It is important to notice that in Musammat Rupias case the plaintiff was the widow who had herself executed the document and not the reversioner and that in Ramautar Sao's case the document, according to the plaintiff, had been executed by him while he was a minor and was, therefore, a nullity. Where the plaintiff is the reversioner the position, is very different as the onus, in such a case, is not on him to show that fraud or coercion led to the execution of the document but on the defendants to show that it was executed for legal necessity and is, therefore, binding on the reversioner. In Bijoy Gopal Mukherji v. Krishna Mahishi Debi, their Lordships of the Judicial Committee observed:—

“A Hindu widow is not a tenant for life, but is owner of her husband's property subject to certain restrictions on alienation and subject to its devolving upon-her-husband's heirs upon her death. But she may alienate it subject to certain conditions being complied with. Her alienation is not, therefore, absolutely void, but it is prima facie voidable at the election of the reversionary heir. He may think fit to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any court, and he shows his election to do the latter by commencing an action to recover possession of the property. There is, in fact, nothing for the court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir. It is true that the appellants prayed by their plaint a declaration that the ijara was inoperative as against them, as leading up to their prayer for delivery to them of khas possession. But it was not necessary for them to do so, and they might have merely claimed possession, leaving it to the defendants to plead and (if they could) prove the circumstances, which they relied on, for showing that the ijara or any derivative dealings with the property were not in fact voidable, but were binding on the reversionary heirs.”

A Full Bench of this Court, relying on these observations, has held that on the death, of a Hindu widow the reversionary heirs may sue for possession of property which she has purported to alienate and need not ask in terms for a declaration that the deeds which she has executed are not binding on them and that, if they do so, court-fees are to be paid under section 7(v) of the Court-Fees Act [Ram Sumran Prasad v. Gobind Das]. On behalf of the respondents it was pointed out that two of the defendants claimed that it was they, and not the plaintiffs, who were the heirs of Abhilakh Choubey and that the revenue courts had accepted this contention and directed that their names should be entered in register D. It does not, however, follow from this that it was incumbent on the plaintiffs to ask in terms for a declaration that they were the reversionary heirs and for recovery of possession by way of consequential relief. No doubt, it will be incumbent on them in the suit to show that they are, in fact, the reversionary heirs and that the succession has already opened as the defendants nos. 1 and 2 are not, as they claim to be, the daughters of Abhilakh Chaubey, but it was enough for them to ask in the plaint for recovery of possession, see Ramkhelawan Sahu v. Bir Surendra Sahi and Maung Shein v. Ma Lon Ton. The plaintiff did not ask in terms for any declaration of his title. Moreover, so far as the property set out in Schedule E is concerned, the plaintiff alleged that in spite of the order made by the superior revenue courts he was still in possession of it, he having contrived to obtain possession on the death of the widow and this having been recognized by the Land Registration Deputy Collector. So far as the other property, namely, that entered in Schedule A is concerned, it appears that Musammat Pachratna Kuer had executed, a mukarrari deed conveying of purporting to convey it to the predecessor-in-interest of certain of the defendants. The plaintiff sought to recover possession of this property on the ground that the act no the widow, if, indeed, it was her act at all, was not binding on the estate. It is, I think, perfectly clear that on the authorities the court-fee paid on the plaint was sufficient. I would, therefore, allow this application with costs and set aside the order of the court below. The hearing fee is assessed at two gold mohurs.

Agarwala, A.C.J:— I agree.

Rule made absolute.