Judgement

Appeal from a judgment and decree of the Judicial Commissioner of Oudh (August 8, 1916) reversing a decree of the Subordinate Judge of Gonda (December 23, 1913).

The suit was instituted by the respondent to recover possession of the village of Sonahra from the appellant. The main question for determination in the appeal was the validity of a deed of sale of the village executed on December 30, 1871, in favour of the appellants predecessor in title by three Hindu ladies, Musammats Basanta, Rani and Maharani. The facts appear from the judgment of their Lordships.

The respondent by her plaint alleged that Gokaran and Sheo Dayal were joint in estate, that on the death of Gokaran the estate passed by survivorship to Sheo Dayal, and that on the death of the widows (the three ladies above referred to) the respondent, as Sheo Dayal’s daughter, succeeded.

The appellant by his written statement contended (inter alia) (1.) that Musammat Basanta, as widow of Gokaran, was entitled to an 8-anna share, and that the plaintiff did not claim in her plaint to be heir to Gokaran; (2.) that the vendors had an absolute interest in the property by custom and under the decree of the Settlement Assistant Commissioner, dated December 6, 1869.

The terms of that decree were as follows " It is ordered that the claim of the 1st and 3rd set of plaintiffs for superior rights in the village Sonahra be dismissed, and that a decree for superior rights in favour of Rani and Maharani, wives of Sheo Dayal, and Basanta, wife of Gokaran, be passed, subject to the rights of the other shareholders."

The khewat of the village Sonahra, relied on by the appellant, was headed "statement relating to the division of shares in a zamindari mahal which, having been verified in the present settlement, was filed with settlement papers." It recorded in the first column as the "name of sadar malguzar," " Musammat Basanta, wife of Gokaran" ; and in the columns devoted to the names of the possessors and amount of shares it recorded the name of Basanta " in her own right, 8 annas," and Rani and Maharani, " in equal shares, 8 annas." The original khewat was stated as verified on May 30, 1870.

The wajib-ul-arz was verified in November 23, 1870, and stated "every shareholder has a right to transfer his share by mortgage or sale."

The Subordinate Judge found, inter alia, that Sheo Dayal survived Gokaran, that the plaintiff had no right to sue, that the vendors were in possession as full owners, and that by custom widows took an absolute estate. He accordingly dismissed the suit".

The plaintiffs appealed to the Court of the Judicial Commissioner, which delivered judgment on December 1, 1915, finding that Gokaran and Sheo Dayal were joint in estate, with the result that Sheo Dayal took by survivorship to the exclusion of Basanta. The learned judges in dealing with the settlement decree said "In their plaint"—i.e., at the settlement—"the ladies claimed the village on the strength of an antecedent title, describing it as having been granted to the ancestors of their husbands by Raja Dat Singh. The decree granted by the Settlement Court expressly stated that the village was granted to them subject to the rights of their co-sharers. In other words, while conceding superior proprietary rights (haq-ala), as distinguished from an under-proprietary tenure, it declared that the village was to go to the ladies and to all other persons who might be entitled to the same on the strength of their antecedent rights. The ladies were given the village as representing a certain stock or body of proprietors, with the details or particulars of which the Government, when releasing the property, did not care to concern itself. No grant to an indefinite or indeterminate body of individuals could be effective, and the object of the reservation of the rights of co-sharers evidently was to leave the antecedent title of persons, not claiming adversely to the persons who got the decree, undisturbed. The lad