Viscount Cave :-

This is an appeal by the plaintiff from a judgment and decree, dated the 26th January, 1916, of the High Court of Judicature for the North-Western Provinces, Allahabad, which reversed a judgment and decree, dated the 11th May, 1914, of the Subordinate Judge of Moradabad and dismissed the plaintiff's suit.

The plaintiff's claim was for recovery of possession of a village called Gureta in Pergunnah Hasanpur in the District of Moradabad, and the question raised in the suit is as to the title to the village in question. The material facts are as follows :-

One Nanak Chand died in the year 1856, possessed of a considerable estate and leaving him surviving a widow, Mst. Pato, and three daughters, Msts. Durgadei, Mahadei and Hardei (the appellant). On his death his estate devolved on his widow. On her death it would pass to his daughters as joint tenants with benefit of survivorship, and on the death of the surviving daughter it would pass to his grandsons.

On the 22nd January, 1864, the widow, Mst. Pato, executed a deed of covenant by which, after declaring that she was exclusively entitled to the property described in the schedule, she covenanted that on her death it should devolve on her three daughters above named, who might either remain in joint possession of it or divide it among themselves, The schedule comprised a number of items of property which are proved by earlier documents to have belonged to Nanak Chand, and also comprised other items in respect of which no such earlier documentary evidence is produced. Among the latter properties is Mauza Gureta. In the events which happened this document did not become operative, but it is relevant as showing that at the date of its execution Pato was claiming an absolute right to dispose of the whole of the scheduled property.

In or about the year 1875 a transaction took place which was proved by the evidence of Murari Lal (son-in-law of Mahadei) in this suit, and which was also deposed to by the appellant Hardei in a former suit (No. 177 of 1897) brought by her in respect of other property. The effect of this evidence is that Pato in 1875 made a division of the whole of the property scheduled to the deed of 1864 among her three daughters and her grandsons then living. Certain parts of the property were given to the grandsons, who were sons of Durgadei and Hardei, and the remainder was divided into three groups for which the daughters drew lots. The lot which included Gureta fell to Mahadei. The daughters and grandsons entered into immediate possession of their lots; and mutation of names was effected shortly afterwards, probably in the lifetime of Pato.

Pato died in 1876, and after her death each of the daughters dealt with the property allotted to her on the division as her own absolute property. Durgadei made several mortgages of the property allotted to her, and on her death in 1888 it was registered without objection in her husband's name. Mahadei also executed mortgages of parts of the property allotted to her, in addition to the sale-deeds to be hereafter mentioned; and on the 23rd August, 1887, the plaintiff Hardei herself executed a mortgage of part of the property allotted to her in terms which showed plainly that she considered herself to be the absolute owner of the property.

The particular transaction which gave rise to the present suit occurred in 1883 and 1884, when Mst. Mahadei sold and conveyed Gureta to Roshan Singh, the predecessor-in-title of the respondents. The sale was carried out by two deeds, dated the 9th February, 1883, and 20th May, 1884, each conveying a moiety of the property ; and in each of these deeds the vendor Mahadei stated that the property having been inherited by her from her father (tarkai pidri) was owned by her and she was in exclusive proprietary possession thereof. The plaintiff admitted in the suit of 1897 that she knew of his sale at the time; but she made no objection to it "inasmuch as she had control over her property," th