Allahabad High Court
Ram Newaz And Anr. vs Nankoo And Ors. on 22 October, 1925
Equivalent citations: AIR 1926 All 283
JUDGMENT
1. This is the appeal of the plaintiffs who had instituted a suit as reversioners of one Ram Charan for the possession of 2 bighas of land. In 1884 Ram Charan appears to have been in difficulties and he had a 9-pie odd share in a certain village. He executed a sale-deed which has had to be construed in all the Courts and on the proper construction of that sale-deed the rights of the parties depend. The plaintiffs are the reversioners, but the defendants are the purchasers of whatever rights the vendee had. The real point is whether the sale was an out-and-out sale of the 9-pie odd share or whether it was a sale by the vendor of the 9-pie odd share minus the 2 bighas cow in dispute. The document lies before us and it starts by Ram Charan stating that he had a 9-pie 3-kauri 2-dant zamindari share in the property and then, after usual formal parts, says that he has absolutely sold, with the exception of 2 bighas of nankar land numbered as below (1460), the entire property. Pausing there and putting the sale in the plainest; possible terms it was a sale of the 9-pie odd share minus the 2 bighas specifically numbered. At a later portion of the deed he says:
Let this be known that the 2 bighas of nankar land which I have excluded from the sale shall remain in my possession for life and after my death in the possession of my aulad khas without payment of rent or Government revenue. I or my lineal descendants have no right to transfer the property excluded either permanently or temporarily. If none of my lineal descendants is alive in my family then the said land shall be declared to be the own property of the vendee and his heirs and the persons of my family shall have no claim to the same.
2. It remains only to notice one further reference to this land. In the detail we find the share sold, viz., 9-pie 3 kauri 2 dant nankar land excluded from the 2 bighas No. 1460. The construction that we put upon the passages that we have read is that the vendee got on the 12th of February 1884, the date of the sale, the 9-pie odd share with No. 1460, the 2 bighas definitely excluded, but that they had a possibility of becoming its owners at a future date provided that provision was one which the law would recognize. We can see in the document no indication whatever of the vendees having acquired the whole of the property in the whole of the land including the two bighas. What we do find is an acquisition of the whole of the 9-pie odd share except that particular area of 2 bighas numbered 1460. Now if that be so, what is the position when a contest arises between the nearest reversioners and the successors of the venders? The position was that Ram Charan having died, he was succeeded by his son Mauzzam Ram, who in turn died childless in 1918, and, therefore, those 2 bighas of land would, as it happened, if there was no law to the contrary, become the property of the vendees within a life or lives in being and twenty-one years after. But the fact that it happened to fall in within the legal limitation is not the test which is to be applied to these cases. What you have to see is whether the event can be postponed to beyond the period of a life or lives in being and 21 years after and not what in fact happened. Now applying that test it is perfectly evident that these 2 bighas of nankar land might have remained with the lineal descendants of Ram Charan for 100 or 200 years, and that being so, we are of opinion that this was a condition repugnant to the law, and being so repugnant to the law the defendants could not set up this document on which they rely as entitling them to possession of the property. “We are, therefore, of opinion that the plaintiffs were right in bringing this action and that the decision of the learned Judge of this Court must be set aside and the decree of the first appellate Court which confirmed the judgment of the Munsif must be restored with costs and fees in this Court on the higher scale.