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PATNA HIGH COURT
H.Mahapatra and Tarkeshwar Nath JJ.
Nathuni Missir
Versus
Mosammat Ratna Kuer
Appeal from Original Decree No. 484 of 1958 ;
Decided On : FEBRUARY 21, 1963
HINDU SUCCESSION ACT, 1956 - SECTION 8 - RETROSPECTIVE EFFECT - SUIT FOR DECLARATION OF INVALIDITY OF DEED OF SURRENDER - MAINTAINABILITY - ADVERSE POSSESSION - REVERSIONERS RIGHT TO RECOVER POSSESSION - SPECIFIC RELIEF ACT, 1963 - SECTION 42 - APPLICABILITY.
Fact of the Case:
Plaintiffs, as reversioners of Raghu Missir, filed a suit for a declaration that the deed of surrender executed by Mosammat Ratna Kuer (defendant 1) in favor of Mosmt. Deorani Kuer and Ramji Pandey (defendants 2 and 3) was illegal, invalid, inoperative and not binding upon them. The trial court dismissed the suit holding that Ramchij Missir died later than Raghu Missir. The plaintiffs appealed to the High Court.
Finding of the Court:
The High Court held that the deed of surrender was invalid and not binding on the reversioners as it was in favor of defendant 3 as well, who was not the nearest reversioner of Raghu Missir. The court also held that the suit for mere declaration was maintainable and was not barred under Sec. 42 of the Specific Relief Act, as the plaintiffs could not seek for recovery of possession during the lifetime of defendant 1. The court further held that the provisions of Section 8 of the Hindu Succession Act, 1956 were not retrospective and would not apply to the present case as Raghu Missir had died before 17th June, 1956.
Issues: 1. Whether the deed of surrender executed by defendant 1 in favor of defendants 2 and 3 was valid? 2. Whether the suit for mere declaration was maintainable? 3. Whether the provisions of Section 8 of the Hindu Succession Act, 1956 were retrospective?
Ratio Decidendi: 1. The deed of surrender was invalid and not binding on the reversioners as it was in favor of defendant 3 as well, who was not the nearest reversioner of Raghu Missir. 2. The suit for mere declaration was maintainable as the plaintiffs could not seek for recovery of possession during the lifetime of defendant 1. 3. The provisions of Section 8 of the Hindu Succession Act, 1956 were not retrospective and would not apply to the present case as Raghu Missir had died before 17th June, 1956.
Final Decision: The appeal was allowed and the judgment and decree of the trial court were set aside. The plaintiffs' suit was decreed and the deed of surrender dated 2-12-1946, executed by defendant 1, in favor of defendants 2 and 3, was declared invalid and not binding on the Plaintiff.
Tarkeshwar Nath, J.
1. This appeal was preferred by Pandit Suraj Missir and Pandit Nathuni Missir (Plaintiffs 1 and 2), but, during the pendency of this appeal, Pandit Suraj Missir died and now his sole heir Pandit Nathuni Missir is the only appellant in this appeal. They instituted a suit for a declaration that the deed of surrender dated 12-12-1946 executed by Mosammat Ratna Kuer (defendant 1) in favour of Mosmt. Deorani Kuer and Ramji Pandey (defendants 2 and 3) was illegal, invalid, inoperative and not binding upon them. According to the genealogical table, which was a part of the plaint, Ganesh Missir had three sons, viz., Bagar Missir, Harbans Missir and Gokhul Missir. Bagar Missir died issueless in a state of jointness with his two brothers. Harbans Missir had two sons Tilak Missir and Dwarika Missir. Tilak Missir naa one son Ramdeni Missir, who died issueiess.
Dwarika Missir had three sons, viz., Sheodeni Missir, Raghu Missir and Ramchij Missir alias Ram Charitar Missir. Goknul Missir naa two sons, Rambhaju Missir, and Raghunandan Missir. Ram-bhaju Missir had two sons, Suruj Missir (Plaintitf 1) ana Sheonandan Missir. Sheonandan Missir left one son Hirdeya-nand Missir, who died issueiess. Raghunandan Missir Lett two sons, Nathuni Missir (Plaintiff 2) and Ram Kripal Missir.
Sheodeni Missir died long ago leaving behind no issue before survey operations while he was joint with Ragnu, Missir and Ramchij Missir. Ramchij Missir died in 1922 leaving a widow Mosmt. Shirajo Kuer (defendant 4) and two daughters, viz., Deorani Kuer (defendant 2) and Shureshra Kuer. After the death of Ramchij Missir, Raghu Missir came in possession of all the properties belonging to that family and he died issueiess in 1926 leaving behind his widow Ratna Kuer (defendant 1). The said widow came in possession of the properties as a limited owner. Plaintiffs case further was that Ratna Kuer went out of her house in 1941 for Ganges bath, but she did not come back. She could not be traced out and there was a rumour tnat she was drowned in the river. After her disappearance, plaintiff came in possession of the properties as legal heirs on Raghu Missir and Ratna Kuer, but they put Shirajo Kuer (defendant 4) in possession of the properties in lieu of maintenance which she was entitled to get from the estate of Raghu Missir. Defendant 4 executed a deed of usufructuary mortgage for Rs. 1,400.00 on 21-7-1942 in the name of Tribhuwan Sharma and when the plaintiffs learned or that transaction they took back possession of the properties. Plaintiffs instituted a title suit No. 153 of 1944 in the Court of the Munsif, third Court, at Arrah, against defendant 4 and Tribhuwan Sharma for possession of the mortgaged land. The suit was transferred to the first Court of we Munsif and he dismissed the suit on 22-1-1948 holding that Ramchij Missir died later than Raghu Missir. Title Appeal No. 128 of 1948 against that decree was dismissed on 15-12-1948 and a Second Appeal No. 265 of 1949 also arising out of the said suit was unsuccessful on 7-1-1953, subject to the modification that the question as to whether Raghu Missir had died earlier than Ramchij Missir was left open for future adjudication.
Ratna Kuer (defendant 1) having conspired with defendant 4 executed a deed of surrender on 12-12-1946 in favour of defendants 2 and 3 during the pendency of the said suit, but the plaintiffs fearnt of it later. Ratna Kuer described defendant 2 as her daughter and defendant 3 as her daughters son in that deed, but in fact it was not so. Raghu Missir was married only once and Ratna Kuer was his widow.
Defendant 2 was the daughter of Ramchij Missir and she was married in village Bagipakhar with Nityanand Unoubey and she had no issue. Ramji Pandey (defendant 3) was the son of Jagarnath Pandey of village Pandeypur. Defendant 4 had another daughter Sureshra Kuer and she was married to Rampujan Pandey, brother of Jagarnath Pandey. Plaintiffs alleged that Raghu Missir being the l
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