Decided on May 19,1900

DEBI SAHAI Appellant


Aikman and Burkitt, JJ - (1.) This is an appeal brought by the defendant to a suit instituted by the plaintiffs-respondents to recover possession of landed property of considerable value together with mesne profits, and for invalidation of a deed of gift, dated the 8 October 1882, executed in favour of the defendant by one Musauimat Dilla Kunwari. According to the plaint Dilla Kunwari had only a life interest in the property. She died on the 25 September 1895, and the plaintiff's case is that with her death any interest which her donee, the defendant, had in the property, determined.
(2.) The property in suit at one time belonged to Bhawani Dayal and Basant Lal, two brothers, members of a joint Hindu family. Bhawani Dayal died in 1851, leaving him surviving two widows, Kishen Kunwari and Dilla Kunwari, and a daughter by Kishen Kunwari named Jado Nath Kunwari. On Bhawani Dayal's death the property passed by right of survivorship to his brother Basant Lal, who died in 1859, leaving two widows, but no issue. These widows, who had entered into possession of the estate, both died in 1861. On their death the widows of Bhawani Dayal in some unexplained manner got possession of the estate in equal moieties, although it is admitted the title to it devolved on the nearest reversioners, Hanuman Prasad and Han want Prasad. The latter died in 1865, and his rights in the estate passed to his son Debi Prasad. On the 8 September 1866, Debi Prasad and his uncle Hanuman Prasad executed a deed of gift of the whole estate in favour of Musavnmat Jado Nath Kunwari, daughter of Bhawani Dayal. At that time Jado Nath's mother, Kishen Kunwari and Kishen Kunwari's co-widow Dilla Kunwari, were in possession in equal shares. Jado Nath's mother died in 1869, and Jado Nath then got possession of half of the estate. In 1870, Jado Nath Kunwari brought a suit against Dilla Kunwari and one Ram Manorath Lal, in whose favour Dilla Kunwari had executed a deed of gift to recover possession of the rest of the property. The Court of First Instance decreed Jado Nath's claim for possession of all the property save eleven villages. As to these the decree declared that Dilla Kunwari would remain in possession for her lifetime without power of alienation, On appeal this Court reversed the decree of the first Court so far as it decreed to the plaintiff possession of any part of the property, and dismissed the suit, but with the declaration that any transfer or alienation made by Dilla Kunwari to Ram Manorath Lal was not to take effect against the reversioners. The defendant-appellant, in whose favour Dilla Kunwari executed the second deed of gift which this suit seeks to invalidate, is the son of Ram Manorath Lal abovementioned. Jado Nath Kunwari died in 1879, and it is admitted that on her death her rights in the property in suit passed to her daughter Jagarnath Kunwari, who died on the 13 November 1896. The plaintiffs are the sons of Jagarnath Kunwari, and claim that the right to the property in suit devolved on them on their mother's death.
(3.) The lower Court decreed the plaintiff's claim, and against that decree the present appeal has been brought by defendant. For the appellant it is contended, in the first place, that the deed of gift executed by Hanuman Prasad and Debi Sahai in favour of Jado Nath Kunwari, plaintiff's predecessor in title, is bad as being the gift of merely a contingent interest. We are of opinion that there is no force in this plea, as the succession of the donors opened upon the death of Basant Lai's widows, and their interest then ceased to be contingent. It is next contended that Musammat Dilla Kunwari, through whom the appellant claims, had acquired by adverse possession a complete title to the property. We are of opinion that in the face of the judgment of this Court, dated 19 April 1871, a judgment in a suit between the predecessors in title of the parties before us, and of the subsequent judgment of this Court dated 4 July 1883, also a judgment inter partes, in which the effect of the decree of 1871 was considered, this is a position which cannot successfully be maintained, it having been clearly held in these judgments that Musammat Dilla Kunwari had only a life-interest in the property.;

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