Judgement

Appeal (No. 118 of 1931) from a decree of the High Court (April 30, 1930) affirming a decree of the Subordinate Judge, Benares (November 30, 1925).

On December 10, 1923, a money decree was obtained against a Hindu widow, who was in possession of her deceased husbands property as heir to their deceased son ; part of the property was attached in execution of the decree. The respondents instituted a suit against the decree holder (now represented by the appellants) claiming a declaration that they were entitled to the whole property under a deed of relinquishment executed by the widow two days after the decree was obtained, and that the attachment was invalid.

The facts appear more fully from the judgment of the Judicial Committee.

The Subordinate Judge dismissed the suit on the ground that the deed was fraudulent and invalid. On the day before, or the day upon which, he delivered judgment the widow died. Upon an application by the plaintiffs under s. 114 and Order xlvii., r. 1, of the Code of Civil Procedure, 1908, the Subordinate Judge reviewed his judgment, and decreed the plaintiffs claim upon the ground that they had become entitled by inheritance.

An appeal to the High Court was dismissed. The learned judges (Banerji and King JJ.), following Kallu

v. Faiyaz All Khan (( 1908) I. L. R. 30 A. 394.), rejected a contention that, as the decree was in respect of money borrowed by the widow for legal necessity, it was binding upon the property in the hands of the respondents. The question whether the Subordinate Judge had power to review his judgment was not dealt with.

1934. June 26, 28. Wallach for the appellant. It is contended (1.) that the decree, being for money borrowed by the widow for legal necessity, was binding upon the respondents as reversioners, and could be executed after her death by attachment of property of her deceased husband; (2.) that the respondents claim failed, because it was based upon the invalid deed of relinquishment, and the Subordinate Judge had no jurisdiction to review his judgment.

[After the first contention had been partially argued, and reference made to various cases, their Lordships desired that the second contention should be dealt with first.]

The jurisdiction to review is limited by Order xlvii., r. 1, sub-r. I, and the general words " or for any other sufficient reason " are to be read according to the ejusdem generis rule as meaning a sufficient reason analogous to those specifically stated Chhajju Ram v. Neki. (2) There was no such reason in the present case. Although this contention is not referred to in the judgment of the High Court, it was raised in terms by the fifth ground in the memorandum of appeal.

Narisimham for the respondents. There is no indication that the contention as to the jurisdiction of the Subordinate Judge was put forward in the High Court, and it should be taken as having been abandoned. It is not in terms raised by appellants reasons. In these circumstances the appellants should not now be permitted to rely upon it. Had it been successfully raised at an earlier stage the respondents could have appealed from the original decree.

July 20. The judgment of their Lordships was delivered by

SIR LANCELOT SANDERSON. This is an appeal from a decree of the High Court of Judicature at Allahabad, dated April 30, 1930, which affirmed a decree of the Subordinate Judge of Benares dated November 30, 1925.

The appellants are the heirs and legal representatives of Musammat Dulhin Radha Dulari Kunwar, hereinafter called Musammat Dulhin, who was the first defendant in the suit. She died in June, 1927, and the names of her legal representatives were placed on the record in her place in May. 1928.

The suit was brought on February 25, 1924, by the plaintiff respondents, both of whom were minors, against (( 1922) L. R. 49 I. A. 144.) the said Musammat Dulhin; (2.) Musammat Chhunni, and (3.) Musammat Shiam Sundar. The plaintiffs prayed for the following relief " That (a) It may