HARIHAR OJHA Vs. DASARATHI MISRA

JUDGEMENT

(1.) This is a suit by an alleged reversioner to recover certain property, which had been alienated by a Hindu widow. The alienations were made by four sale-deeds in the years 1871, 1875 and 1893, and the plaintiff alleges that they were made without legal necessity.

(2.) The defendants pleaded limitation and legal necessity, and denied that the plaintiff was the next reversioner. But all these issues were found by the first Court in the plaintiff's favour; and when the defendants appealed to the Subordinate Judge, they raised only one question, namely, that of legal necessity, while any objection on the ground of limitation is said to have been expressly abandoned. The Subordinate Judge found the issue of legal necessity against the defendants and affirmed the Munsiff's decree in the plaintiff's favour.

(3.) Three of the defendants have now appealed, and the only contention raised before us is one that was never raised in either of the Courts below., namely, that the [suit is not governed by the rule of twelve years limitation according to Art. 141 of the Limtation Act, but by Art. 91, which fixes a period of three years. This contention is based upon the ruling in the case of Bijoy Gopal Muherji V/s. Nil Ratan Mukerji (1903) I.L.R. 30 Calc. 990, in which it was held that an yara lease, which was granted for 60 years by a Hindu widow and which lasted beyond her lifetime was not void on her death, but was only voidable. It is accordingly contended by the learned vakil on the appellant's behalf that the present sale deeds were not absolutely void on the widow's death, but were only voidable; and that it was incumbent on the plaintiff to have these deeds set aside before he could recover the lands.