PAIKU Vs. BHIWA

JUDGEMENT

(1.) THE plaintiff-respondent Bhiwa, filed the present suit in the Court of the Additional Subordinate Judge, 1st class, Kamptee, against the defendant-appellant, Paiku, as well as two other defendants Mt. Guji and Mt. Parbati, for a declaration that a deed of gift, dated 10-2-17 and a deed of sale, dated 26-5-21 (cf. copies of P. 10 and P. 9) are void and inoperative beyond the lifetime of Mt. Guji and are not binding on plaintiff. The property affected consists of absolute occupancy Nos. 65 and 90, occupancy fields Nos. 87 and 105 and a house in mouza Yesamba, Tahsil Ramtek, Nagpur. (Here pedigree is given). The property in question belonged to Bagal who died about 1909: he left two widows. Mt. Guji and Mt. Kalhi who was the mother of Mt. Tulsi, while plaintiff was Bagal's nephew. After Bagal's death, these widows inherited the property. Mt. Kalhi died in 1920, and thereupon, the subjects would have passed to Mt. Guji, but for a deed of gift executed on 10-2-17 by the widows in favour of Mt. Tulsi and her stepson Nago alias Doma, husband of Defendant 3, Mt. Par-bat Doma subsequently died and Mt. Tulsi on 26-5-21 sold the property in suit to the appellant. Since then, Mt. Tulsi has died and plaintiff accordingly brought the present suit for a declaration that the gift and sale deeds specified are void and inoperative beyond the lifetime of Mt. Guji.

(2.) THE suit proceeded ex parte against' Mt. Guji and defendant Paiku was the main contestant. His case was that: (a) Bagal and plaintiff were not related as stated in the plaint. (b) Mt. Tulsi and Nago were in possession since the date 'of the gift, while he (Paiku) has been in possession since the sale in his favour. The cause of action arose on the date of the transfers and the suit is now barred by limitation. (c) In any event, plaintiff has no cause of action as regards the occupancy fields, these having been surrendered to the malguzar who let them out to appellant. (d) Plaintiff cannot challenge the transfer of the half portion which devolved on Mt. Parbati after Nago's death as plaintiff is not a reversionary heir of Mt. Tulsi. (e) Nago's interest in the holding is extinguished by the fact of appellant having held possession for over two years. (f) Nago was only the stepson of Mt. Tulsi and not her son and the registration of the gift deed was thus effected by fraud. The donees were, therefore, in the position of trespassers as against the widows and plaintiff and the title of plaintiff has become indefeasible by two years' adverse possession. (g) The gift deed, being in favour of the next heir, was, in effect, a surrender of the estate : the donees have thus become full owners. Mt. Parbati so far adopted the above pleadings and further urged that Doma was Mt. Tulsi's son : Mt. Parbati accordingly inherited Nago's half share in the property on his death and Mt. Tulsi could not, therefore, give a valid conveyance thereof to plaintiff.

(3.) PAIKU preferred an appeal to the Court of the District Judge, Nagpur, while the ,plaintiff-respondent in that Court preferred a cross objection so far as the disallowance of his claim to the occupancy fields was concerned. The appeal was dismissed, but as regards the cross-objection, the District Judge pointed out that the sale-deed (P. 9) did not cover the occupancy lands which were surrendered under the razinama, dated 26-5-21 (P. 11), No relief had been prayed for as regards this latter deed and the Judge of the lower appellate Court only granted him an additional relief giving him the declaration sought for regarding the occupancy land so far as the gift deed of 10-2-17 and sale deed of 26-5-21 were concerned.