APPEAL FROM ORIGINAL DECREE No 764 OF 1971 *** Against the judgment and decree passed by Shri A Tripathi, 03rd Additional Subordinate Judge, Motihari in Title Suit No 57/3 of 1967/ 1970. *** Madan Mohan Mishra, son of late Hari Pd Mishra, resident of Village – Patkhauli, P S – Chanpatia, District – West Champaran - Plaintiff/Appellant V E R S U S 1 Bharat Tiwary 2 Shatrughan Tiwary, sons of late Rajendra Tiwary 3 Jachhawat Tiwary, 4 Babulan Tiwary, 5 Ram Ekbal Tiwary 6 Chandra Bhushan Tiwary, sons of late Bhirgun Tiwary 7 Narendra Tiwary, son of late Surajman Tiwary, residents of Village – Pathkauli, P S – Chanpatiya, P O – Chuhri, District – West Champaran - Intervener respondents *** For the plaintiff/Appellant : M/s Dhrub Narain, Sr Advocate & Abhitabh Kumar, Advocate For the intervener respondents: M/s K K Tiwary, Ashok Kumar Sinha No 2 & Lokesh, Advocates *** P R E S E N T THE HON'BLE MR JUSTICE NAVANITI PRASAD SINGH Navaniti Prasad Singh, J Title Suit No 57/3 of 1967/70 was filed in the Court of Subordinate Judge, Motihari by the two plaintiffs, namely, Bachani Kuer and Paspati Devi who are daughters of late Baban Tiwary. They were the original appellants before this Court. 2 Defendant No 1 Bhirgun Tewary is the nephew of late Baban Tiwary. Defendant No 2 is Kira Kuar, wife of Rajendra Tewari who happens to be nephew of late Baban Tiwary. Defendants No 3, 4 and 5 are also nephews of late Baban Tiwary. Rukmina Kuer (Defendant No 6) is the second wife of late Baban Tiwary. The suit was filed for a declaration of right, title and interest of the plaintiffs in respect of properties left behind by their father, Baban Tiwary who died in 1945 leaving behind two widows Ram Pyari whose daughters are the plaintiffs and Rukmani who is defendant No 6. It is not in dispute that defendant No 6 had no child. It is the first wife from whom the two plaintiffs were born. Ram Pyari, the mother of the two plaintiffs also died in 1947. Thus, after 1947, it was defendant No 6, the second wife of Baban Tiwary who inherited the limited estate in terms of Hindu Women’s Right to Properties Act, 1937. The plaintiffs’ case further is that in 1950, Rukmani Kuer executed a written surrendernama in favour of defendant No 1 who, as noted above, is nephew of Baban Tiwary. It is further stated that the 1950 surrendernama was not acted upon as would be evident from the compromise decree in a subsequent suit. It is further their case that in 1951, defendant No 6 Rukmani Kuer, their step mother, surrendered the entire interest in the property to the plaintiffs orally and as she was issueless and a widow, she went back to her Naihar (mother’s place). In 1961, defendant No 6 sold a small piece of land and, thereafter in 1967, she sold, by two registered sale deeds, some more land from the property which belonged to late Baban Tiwary and that gave reason for the suit to 3 be filed as the sales were being made after the surrender of her estate to the plaintiffs. In the suit, upon notice, only defendant No 6 Rukmani Kuer appeared to contest the suit. In the written statement, defendant No 6 admitted that the written surrendernama of the year, 1950 in favour of defendant No 1, the nephew of Baban Tiwary was not acted upon and was correctly recorded in a subsequent suit in the compromise decree but she denied any surrender of her limited estate to the plaintiffs. On behalf of plaintiffs, several witnesses were examined including relatives. The evidence on behalf of plaintiffs was consistent in respect of one fact that is that there was an oral surrender of the rights by defendant No 6 and that the plaintiffs were now in possession and that defendant No 6, after the surrender, had gone back to her Naihar being issueless and a widow. On behalf of defendant No 6, she was herself examined as DW 5. Apart from others, in her examination- in-chief, she has denied surrendering the estate or going to her Maike which she has maintained in her cross examination as well. Before proceeding further, I deem it appropriate to deal with some legal consequences which are apparent and which have led to the institution of the suit. We are concerned with the estate of Baban Tiwary. He died in 1945 that is after the Hindu Women’s Right to Properties Act, 1937. At the time of his death, he left behind two widows and two daughters from the first wife. In view of the provisions of the 1937 Act, the two widows inherited a limited estate in the sense that but for exceptional cases they had no right to sell the property though they 4 had full right to enjoy the same. The two daughters, who are the plaintiffs, were the first reversioners. In 1947, the first wife, the mother of the plaintiffs, died. Thus, the entire property vested in the second widow that is defendant No 6 Rukmani Kuer. If the plea of surrender of her estate to the plaintiffs in 1951 is not to be accepted, the result would be that by virtue of Hindu Succession Act 1956, the limited estate of defendant No 6 would become absolute and the two daughters of Baban Tiwary would then be totally excluded from any claim thereunder. Thus, the crucial thing to be decided is about the oral surrender of estate by defendant No 6 to the plaintiffs. The evidences on the two sides are consistent. Plaintiffs’ witnesses are consistent about the oral surrender of estate and plaintiffs being in possession and also to the fact that defendant No 6 after surrender of estate being a widow and childless returned to her Naihar. First material thing to be noticed is that apart from Rukmani Kuer (defendant No 6), the rest of the defendants, who were nephews of Baban Tiwary, chose not to appear in the proceedings. The suit proceeded and was decided ex parte as against them. It is only in this Court after the death of defendant No 6, who was the sole respondent before this Court in appeal, that they have intervened in these proceedings and have chose to take interest for obvious reason because the two plaintiffs died prior to defendant No 6. Now if the appeal is to be dismissed then as Rukmani Kuer also died leaving no heirs, they would become the reversioners and inherited the property but if the appeal is to be allowed, they would lose this chance. 5 Be that as it may, so far as defendants’ evidence is concerned, it is also consistent that Rukmani Kuer did not surrender her estate and continued in possession. She did not go to her Maike. The trial Court examined the evidences of both the sides and has chosen to rely on the evidence as led on behalf of defendant No 6 primarily on the ground that there was no written document of surrender of estate in favour of plaintiffs. He has compared this with the first surrender of 1950 wherein it was by a written document. The question now is whether this finding is correct or not. In my view, one first has to appreciate that upto 1956, the right of defendant No 6 was that of a limited estate and the plaintiffs were the first reversioners. Defendant No 6 was the widow of late Baban Tiwary and plaintiffs were the daughters of late Baban Tiwary. Being reversioners, they had an interest in the property. The right of defendant No 6 was a restricted right. In the case of Natvarlal Punjabhai & Another –Versus- Dadubhai Manubhai & Others, AIR 1954 Supreme Court 61, it has been clearly held that surrender of limited estate by a Hindu widow to the reversioners is not a transfer nor does it require an acceptance by the reversioners nor is it necessary to be in writing. This, in my view, settles the matter to a great extent. Even if this Court proceeds that evidences of both the sides being consistent and opposite, the balance being disturbed by the finding of the trial Court who laid emphasis on written document which was not the requirement in law then surely one had to examine the evidence on basis of 6 preponderance of probability. The fact that defendant No 6 was a widow and issueless is not in dispute. Plaintiffs were the daughters of Baban Tiwary is not in dispute. It would thus be quite natural for defendant No 6 to surrender the estate to her step daughters rather than try and deprive them of their property. She had earlier also tried to give up the property in favour of nephew of Baban Tiwary but later that was not acted upon as admitted by her. Thus, in my view, I must find that there was an oral surrender of her interest in the property to the reversioners, the plaintiffs. That evidence is of greater probative value and acceptable. That is not an exception but is an accepted mode and that would invest the reversioners with full rights which made them the absolute owner of the entire property by virtue of the Hindu Succession Act, 1956 which came subsequently. That being so, in my view, the trial Court wrongly decided the issue and the suit. The judgment and decree of the trial Court is, thus, set aside. The appeal is allowed. It is decreed that the plaintiffs and thereafter their substituted heir has right in the properties of Baban Tiwary being the scheduled properties in the suit and the suit be decreed accordingly. (Navaniti Prasad Singh) PATNA HIGH COURT, THE 29th JANUARY, 2010, N A F R, M E HAQUE/