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PATNA HIGH COURT
Raj Kishore Prasad, J.
Mahindra Singh
Versus
Chander Singh
Appeal From Appellate Decree No. 730 of 1950 ; 771 of 1950 ;
Decided On : JANUARY 23, 1956
CIVIL PROCEDURE CODE, 1908 - Section 35, Order 22, Rules 1, 3, 4, 9, 10, Order 23, Rule 3, Order 7, Rule 4 - HINDU LAW - Reversioner's suit - Abatement - Substitution of legal representative - Maintainability of suit - Costs - Principles governing award of costs - Discretion of Court - Interference by appellate Court.
Fact of the Case:
The suit was instituted by the original plaintiff, Mt. Nunawati, on 27-1-45 for recovery of possession of the disputed properties, of which the last male-holder was Awadh Behari Singh, who died in Chait 1349 Ps., corresponding to the year 1942. The plaintiffs case was that Awadh Behari, her brother, died issueless, and she was his sole surviving sister, out of his four sisters, she impleaded Mahinder Singh, the present plaintiff No. 1 and appellant No. 1, in both the appeals, as defendant 7, on the allegation that he was the only son of Ramwati Kuer, another predeceased sister of Awadh Behari.
Finding of the Court:
The Court found that Mt. Nunawati, the original plaintiff No. 1, was not the sister of Awadh Behari ; Mahinder Singh was the sisters son of Awadh Behari; defendant 3, and the father of defendant 4, were not the sons of Mt. Sonawati, the sister of Awadh Behari; defendant 5 was riot the purchaser of plots 51 and 55, as claimed by him by oral sale; the bharna of 1890, in favour of defendant 5, had not been, redeemed by Awadh Behari, and as such defendant 5 was still the bharnadar of plots 1333, 1432 and 2389 under the deed of 1890; and defendant 5 had purchased plot 2388 by a registered sale.
Issues: 1. Whether the appeal by defendant 5 before the Court of appeal below being an appeal against a decree for cost was not maintainable? 2. Whether the Court of appeal below has wrongly non-suited the plaintiffs, and dismissed their, suit? 3. Whether Mahinder Singh was already a party to the suit as defendant 7, and, therefore, he could be transposed as co-plaintiff to continue the suit of the deceased plaintiff, Mt. Nunawati, and as such there is no question of abatement of the suit after the death of Mt. Nunawati? 4. Whether the suit brought by Mt. Nunawati must be considered to be a representative suit, inasmuch, as the other legal heirs of Awadh Behari, namely, the sons of his deceased sisters, were already parties to the suit as defendants 3 and 7, and, therefore, there is no question of abatement in such a suit?
Ratio Decidendi: 1. The matter of awarding, or disallowing costs is in the discretion of the Judge; and when the Judge gives reason for his order awarding, or disallowing, costs, and these reasons are sufficient and sound, the appellate Court will not interfere with his order. 2. The discretion given is, however, a judicial discretion to be exercised in accordance with definite principles. 3. A suit by a reversioner in respect of the estate of a Hindu widow, however, is one brought or defended in a representative capacity and on behalf of all the reversioners consequently, on the death, pending suit, of such reversioner, the next reversioner will be entitled to continue the suit, or defend it, and there is no abatement. 4. A suit for possession brought by a Hindu widow in a representative capacity as representing the estate, as such also, does not abate on her death. The right to sue survives to the reversionera of the last male owner, who are her legal representatives within the meaning of Sec.2(ii) of the Civil P. C. and as such are entitled to be brought on the record. 5. In the case of V/s. Venkatanarayana Pillai V/s. Subbammal, AIR 1916 PC 124 : 42 ind App 125 (S), his Lordship Ameer Ali J. while considering the nature of suits by a presumptive reversioner, observed: "Under the Hindu Law the death of the female owner opens the inheritance to the reversioners, and the one most nearly related at the time to the last full owner becomes entitled to possession. In her lifetime, however, the reversionary right is a mere possibility, or spes successionis. But this possibility is common to them all, for it cannot be, predicated who would be the nearest reversioner at the time of her death."
Final Decision: 1. Appeal No. 730 of 1950 is dismissed; but, to the circumstances of the case, there will be no order for costs. 2. Appeal No. 771 of 1950 also fails, and is dismissed but without costs.
Raj Kishore Prasad, J.
1. These two second appeals arise out of two appeals preferred before the Court of appeal below, and have been heard together with the consent of the parties, as they arise out of one and the same suit.
2. S. A. 730 of 1950 is by the plaintiffs, arising out of Title Appeal 83/6 of 1948/50, preferred by defendant 5 in the matter of cost only, which was allowed by the Court of appeal below, and the decree for cost awarded against defendant 5 was set aside. S. A. 771 of 1950 is also by the plaintiffs arising out of Title Appeal 91 of 1948, allowed by the Court of appeal below, reversing the decision of the first Court, and dismissing the plaintiffs suit.
3. The facts material for determination of the present appeals may briefly be stated thus: The suit, out of which the present appeals arise, was originally instituted by Mr. M. Nunawati on 27-1-45 as plaintiff No. 1 for recovery of possession of the disputed properties, of which the last male-holder was Awadh Behari Singh, who died in Chait 1349 Ps., corresponding to the year 1942. The plaintiffs case was that Awadh Behari, her brother, died issueless, and she was his sole surviving sister, out of his four sisters, she impleaded Mahinder Singh, the present plaintiff No. 1 and appellant No. 1, in both the appeals, as defendant 7, on the allegation that he was the only son of Ramwati Kuer, another predeceased sister of Awadh Behari.
Original plaintiffs 2 and 3 were transferees from Musst. Nunawati, but they having died during the. pendency of the suit were substituted by their heirs, the present plaintiffs 2 and 3. Defendant 3 was" son & defendant 4 grandson of Mt. Sonawati, one of the sisters of Awadh Behari, who was married to Ramasray Singh. The plaintiffs admitted that Sonawati was one of the sisters of Awadh Behari and was married to Ramasray Singh, but they alleged that she died shortly after her marriage, and thereafter Ramasray married another lady, and begot on her defendant 3, and Harekishun Singh, father of defendant 4. These defendants 3 and 4 were described as defendants 2nd party in the suit. Defendants 1 and 2 who were described as defendants first party, were transferees from the defendants 2nd party.
Defendant 5, who was described as defendant 3rd party, was made a party to the suit on the allegation that he claimed to be bharnadar of some of the suit plots under a bharna deed dated 18-7-1890 and also claimed certain other plots on the basis of an oral purchase. The plaintiffs, however, alleged that the bharna bond had been redeemed by Awadh Behari, and that he did not sell any land to defendant 5.
4. The suit was contested by defendants 1 to 5. The common defence of these three sets of defendants was that Awadh Behari had only one sister, namely, Mt. Sonawati, whose son was defendant 3, and whose grandson was defendant 4, and that Mt, Nunawati, plaintiff 1, was not the sister of Awadh Behari, nor was defendant 7 his sisters son. Defendant 5s further defence was that the ijara was intact and it had not been redeemed, and that he had purchased some plots under a registered sale deed and some others under an oral purchase.
5. The first Court found that Mt. Nunawati, original plaintiff 1, was not the sister of Awadh Be hari ; Mahinder Singh was the sisters son of Awadh Behari; defendant 3, and the father of defendant 4, were not the sons of Mt. Sonawati, the sister of Awadh Behari; defendant 5 was riot the purchaser of plots 51 and 55, as claimed by him by oral sale; the bharna of 1890, in favour of defendant 5, had not been, redeemed by Awadh Behari, and as such defendant 5 was still the bharnadar of plots 1333, 1432 and 2389 under the deed of 1890; and defendant 5 had purchased plot 2388 by a registered sale.
On these findings the learned Munsif dismissed the suit of the plaintiffs in respect of plot 2388 as claimed by defendant 5, but granted them a decree in respect of the remaining lands in suit. He however, allowed costs to the pla
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