1925 JTR(SC) 47
1925 AIR(PC) 234
Privy Council
Ameer Ali, Sir John Edge, Carson, Justice Shaw , JJ.
Mahabir Prasad Tewari -Appellant
Versus
Jamuna Singh and another -Resopndent
Privy Council Appeal No. 92 of 1923, from Patna Appeal No. 54 of 1921
Decided On : 21-07-1925
In an action for ejectment, once the plaintiff's title is established via preferential reversionary heirs, the defendant in possession must prove the existence of another heir with an equal or superior right to resist the claim.
(A) Succession and Inheritance - Preferential Reversionary Rights - Action for Ejectment - Where a higher court has already determined that certain individuals are the preferential reversionary heirs to an estate, that determination is binding. In a suit for possession, if the plaintiff's title is established through such preferential heirs, the defendant in possession cannot resist ejectment unless they can prove the existence of another heir in the same or a nearer degree of kinship who is equally or more entitled to the property.
Facts of the case:
A suit was filed for possession of property. The plaintiff claimed title through purchase from individuals previously declared by the highest court to be the preferential reversionary heirs of the original owner's widow. The defendant, who was in possession, claimed title through an assignment from an agnatic relation and argued that in an action for ejectment, the defendant could plead the right of any other person equally entitled to the property to defeat the plaintiff's claim.
Findings of Court:
The court found that the defendant failed to prove the existence of any other reversionary heir in the same or a nearer degree than the plaintiff's assignors who could be urged against the plaintiff's claim for ejectment.
Issues: Whether a defendant in possession can resist an action for ejectment by pleading the right of a third party who is equally entitled to the property, given that the plaintiff's vendors have already been declared preferential reversionary heirs.
Ratio Decidendi: Once the preferential reversionary right of the plaintiff's vendors is established, particularly by a prior ruling of the highest court, the burden shifts to the defendant to prove a superior or equal title. Failure to prove such a competing right necessitates the granting of possession to the plaintiff.
Result: Appeal dismissed.
Facts of the case:
A suit was filed for possession of property. The plaintiff claimed title through purchase from individuals previously declared by the highest court to be the preferential reversionary heirs of the original owner's widow. The defendant, who was in possession, claimed title through an assignment from an agnatic relation and argued that in an action for ejectment, the defendant could plead the right of any other person equally entitled to the property to defeat the plaintiff's claim.
Findings of Court:
The court found that the defendant failed to prove the existence of any other reversionary heir in the same or a nearer degree than the plaintiff's assignors who could be urged against the plaintiff's claim for ejectment.
Issues: Whether a defendant in possession can resist an action for ejectment by pleading the right of a third party who is equally entitled to the property, given that the plaintiff's vendors have already been declared preferential reversionary heirs.
Ratio Decidendi: Once the preferential reversionary right of the plaintiff's vendors is established, particularly by a prior ruling of the highest court, the burden shifts to the defendant to prove a superior or equal title. Failure to prove such a competing right necessitates the granting of possession to the plaintiff.
Result: Appeal dismissed.
Reversionary rights - The Privy Council previously declared that Rajendra and his brothers were preferentially entitled to the succession of Dhanukdhari.
W. How Daney, Watkins and Hunter, B. Dube, E.B. Raikes
Mr. Ameer Ali. -
This appeal arises out of a suit brought by the plaintiff Jamuna Singh in the Court of one of the Subordinate Judges at Patna for posses sion of property called Mauza Bariarpur in that District. He claims to have ac quired his title by purchase from his as signors, defendants 11, 12 and 13.
The property in dispute, though of com paratively small value, has already been the subject of a series of litigation.
The following pedigree will give a gene ral idea of the various parties whom the plaintiff has impleaded in the case.
N. B. - The name of Raghunandan's father does not appear in the Record. He had two wives, one of whom was the sister of Dhanukdari and mother of Raghunandn, the other wife being the mother of Balmukund and Chitterbhuj (Defts. 6 and 7.)
The Mauza Bariarpur belonged original ly to one Dhanukdhari Missir, who died, it is alleged, some 50 years ago, leaving him surviving a widow named Monakka Kuar. As Dhanukdhari left no issue, his widow succeeded to the estate and held possession until her death in 1902. She appears to have created in her lifetime a Zur-i-peshgee lease in respect of part of the property in favour of the 9th defen dant.
The plaintiff alleges that on Monakka's death there were no agnatic relations of Dhanukdhari. He has, however, as he says, made all persons claiming reversion ary rights through females parties to the suit. His case is that among them his vendors, namely, Rajendra, Ram Sohawan and Qam Nirekhon, who have assigned to him their rights in the property in ques tion, are preferentially entitled to the succession of Dhanukdhari.
The 1st defendant, Mahabir Prasad Tewari, the present appellant before the Board, on the other hand, alleges that Monakka before her death made a will in his favour and devised to him the property in suit, and that he obtained possession of the same, which he has retained until now. It appears that he obtained, on the 16th April 1903, probate of the will shortly after the death of Monakka from the Court of the District Judge of Patna. It is not disputed, however, that the devise by Monakka was invalid.
The first defendant's real case is that at the time inheritance to Dhanukdhari's estate opened, on the death of Monakka, the preferential heir to his succession was his agnatic relation, Gopal Misser. His place is shown in the pedigree. Gopal Misser is still alive, and the appellant has obtained from him an assignment of his rights and interests. The appellant has also purchased, it appears, the rights and interests, if any, of several of the other defendants.
In 1903 a suit was brought by the Secretary of State for the possession of Mauza Bariarpur on the allegation that Dhanukdhari had died without leaving any heir, that Mahabir, the appellant had no title to the property and that it had ac cordingly escheated to the Crown. It is alleged by the appellant that this suit was really prompted by defendant 9.
A number of persons, almost all of whom have been made defendants in this action, came forward as claimants in the suit of the Secretary of State. The suit was finally dismissed by the High Court of Calcutta on the 14th May 1908 Soon after its dismissal the appellant brought a suit against Adit, the 9th defendant, for redemption of the usufruc tuary mortgage created by Monakka. The appellant based his right to redeem on the assignment to him by Hanuman (whose name will be found in the pedigree) of his rights and interests in the property, and the first Court made a decree in his favour in these terms :-
"In accordance with my decision of the other issues I hold that the plaintiff will get a declaration that he is the proprietor of the disputed Mauza Bariarpur as men tioned in the plaint and that the defendant No. 1 will be declared to be a Zarpeshgidar of the Mauza, and it will also be declared that the plaintiff will get Khas possession of the disputed Mauza on payment of Rs. 200, as stipulated in the 2nd Ticca Patta (dated 1-9-02)."
The Subordinate Judge held in effect that the assignment by Hanuman, whom he considered to have a preferential rever sionary right, entitled the defendant to redeem the property from Adit. This view appears to have been accepted by the High Court, and the decree of the first Court was affirmed. On an appeal to this Board it was declared that Rajendra and his two brothers were preferentially entitled. The decrees of the Courts in India were reversed and the appellant's suit for redemption was dismissed (48 I. A. 86).
The present suit by the plaintiff was brought on the 8th September, 1914. It was dismissed by the Subordinate Judge on the 31st October, 1917, on the ground that ho (the plaintiff) had failed to prove that his vendees were preferential rever sioners. In the meantime, as already stated, it had been declared by the Board on the 18th January, 1921, that the plaintiff's vendees had the preferential light, and the High Court has accordingly upheld the claim, and made a decree in favour of the plaintiff.
Counsel for the appellant admits that in face of the ruling by the Board he could not impugn the reversionary right of the plaintiff's vendors, but he contends that the defendant is in possession and in order to eject him the plaintiff must show that there is no other reversionary heir in the same degree or nearer than his assignors whose title he (the defendant) can urge against the plaintiff's claim for ejectment. In other words, the action being one of ejectment the defendant is entitled to plead in defence the right of some one else equally entitled with the plaintiff's vendors. Mr. Justice Bucknill of the High Court of Patna in his careful judgment has shown that the defendant had failed to prove satisfactorily that the parties whom he had put forward were entitled to the property in preference to the plaintiff's vendors.
The evidence on which the appellant relied has been read to their Lordships, and Mr. Raikes has put before the Board every point in support of his case. Their Lordships, however, see no reason to differ from the High Court. They will humbly advise His Majesty that the appeal should be dismissed with costs.
Appeal dismissed.