D.P.Uniyal, J. - (1.) SECOND Appeal No. 2698 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 and others v. Smt. Govindi and others) 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: HANNU | _______________ |________________ | | | | Gajadhar = Smt Govindi Panchu = Smt. Kalui | | ________|______________ | (4 daughter) | Guman = Smt. Ramraji | | | ________|_______________ | | | Dukhi | | (defdts. 1 to 9 Chhangu and others) 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 cultivatory 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. 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, C.P.C. 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.
(3.) 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. 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 en- titled 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.;