JUDGMENT
Mahapatra, J.
1. Defendants 1 to 4, who were defendants first party in the original suit, out of which this appeal arises, are the appellants. The other set of defendants, were transferees from defendants 1, 2 and 3. The suit by the five plaintiffs was for a declaration that the settlements of lands in suit by defendant No. 4, Dulhin Janak Dulari Kuer, in favour of defendants 1, 2 and 3 were not legal, effective, bona fide or binding on the plaintiffs, who claimed to be the presumptive reversionary heirs of Deonandan Prasad Singh, husband of defendant No. 4.
2. The defence, mainly on behalf of defendants 1 to 3, was that the settlements were
bona fide and for legal necessity and they
had been in possession since the settlement;
the plaintiffs were not the presumptive reversioners of the deceased husband of the defendant No. 4; One Jadunandan Sharma alias
Bachu Babu was the sister’s son of the deceased Deonandan Singh and as such he was the
presumptive reversioner; during his life time
it was not open to the present plaintiffs to
maintain the suit. It is significant to note here
that in the written statement these defendants
did not traverse the allegation made in plaint
paragraphs 6 and 9 in regard to the cause of
action that gave rise to the suit and also that
the settlement by defendant No. 4 in favour of
defendants 1 to 3 was in 1953 and the settlees
came in possession also in the same year,
(28-6-53).
3. The transferees from defendants 1 to 3 also filed a written statement and contested the suit. In the written statement filed by defendants 5 to 11 and 13, they alleged that the settlement in dispute had been made on the 25th Jeth, 1353 Fasli corresponding to 1946. They pleaded the bar of limitation of the suit on that account, as the suit was not instituted within six years from the dale of settlement.
4. The trial court framed several issues on the pleadings of the parties and after consideration of all the evidence that were brought on the record, allowed the plaintiffs’ suit and granted the declaration sought for. It held, however, that Jadunandan Sharma was the sister’s son of deceased Deonandan Singh and was the presumptive reversionary heir of the latter, but all the same, the plaintiffs could maintain the suit, because Jadunandan had colluded with Janak Dulari, defendant No. 4, and had concurred in the act, which is alleged to be wrongful. The trial court accepted the plaintiff’s case that the settlement was not bona fide or for legal necessity or by way of prudent management of the estate by the limited owner. It is against this that the present appeal was brought by defendants 1 to 4.
5. Learned counsel, appearing for the appellants, challenged the finding of the court below in regard to the nature of the settlement and asserted that by way of prudent management of the estate, which came to the hands of Janak Dulari, she throught it advisable to settle about 80 bighas bakasht land with defendants 1 to 3, particularly in view of the agrarian troubles that had raised their head in this State, and also in view of the land reforms that were about to be initiated in the country, against the proprietors and the tenure-holders. The trial Judge has gone deep into evidence and has analysed the whole case, as advanced by the plaintiffs and the defendants, in regard to the disputed transaction. The conclusion arrived at by him seems to be inevitable.
6. Janak Dulari was in possession and management of the estate for over 25 years and had not found any difficulty in regard to her bakasht lands of which she had 130 acres. The land reform legislations had already come before the impugned settlement. Bakasht lands in possession of a proprietor were to be retained with him or her, even after the vesting of the estate in the State. That was then a very valuable item of property and parting with it can not he said to be an act of prudent management. The power of alienation beyond the life time of a limited owner is very restricted. A transferee in such a case has to establish the necessity for such action, or at least that he had made necessary and bona fide enquiries about such legal necessity. The onus of proof in this respect was upon the defendants, who were the brothers (defendants 1 and 2) and nephew (defendant 3) of the settlor.
7. The settlement, on the face of it, was not in the interest or for the benefit of the estate, because, admittedly, no Salami or
Nazrana was taken for it. The right to receive the rent was to he wiped out under the Bihar Land Reforms Act, 1950, which was already known to all particularly to persons like defendant No. 3, who is a practising lawyer. The deposition of the defendant No, 4 (D. W. 22) that these bakshi lands were unproductive or a losing burden on the estate was clearly an after-thought, as that was not stated in any of the written statements. The trial court has discussed the evidence of both the sides about the valuable character of the bakasht lands, of which a major portion (80 out of 130 bighas) was settled. Learned counsel did not comment upon the assessment of the evidence and it is not necessary to repeat them here. The facts that the settlees were the close relations (brothers and nephew) of the defendant No. 4 and that no premium was taken from them are indicative of the absence of bona fide intention or action of the limited owner. Clearly enough, she was not in want at all as she had extentive properties in her hands.
8. Learned counsel’s next comment was in regard to the limitation of the suit. He urged that in face of the denial of the date of settlement, as alleged in paragraphs 6 and 9 of the plaint, by defendants 5 to 11 and 13, and in case of the categorical assertion by them in their written statement to the effect that the settlement was on the 25th Jeth. 1353, the suit must he held to he barred by limitation. There are more than one difficulty in accepting this contention. First of all, the bar of limitation was not pleaded by the present appellants. They did not traverse the date of settlement, as alleged definitely and assertively by the plaintiffs in paragraphs 6 and 9 of their plaint. The point was not raised in any issue and the plaintiffs had no opportunity to prove that, as a matter of fact, the settlement had taken place as they had alleged in the plaint. They said that there was a Hukumnama granted by defendant No. 4 in favour of defendants 1 to 3. If this point had been raised specifically cither in the pleadings of the appellants or even by the other defendants in the form of an issue, the plaintiffs could have been called upon to meet that challenge and prove affirmatively that the settlement was in 1953 and not in 1946, as alleged by some of the defendants second party.
9. The other reason against accepting the contention is that the period of six years’ limitation is not applicable to the present case. Learned counsel’s argument was that because Jadunandan Sharma (D. W. 1) was the presumptive reversionary heir of the deceased Deonandan Singh, the suit by the present plaintiffs, who were remote reversionary heirs, should have been brought within sis years of the impugned alienation. As I shall come to show a little later, the finding of the trial court that Jadunandan Sharma was the sister’s son of Deonandan Singh can not be retained. In that view of the matter, 12 years’ limitation was applicable to the present case. Even if the alienation was in 1946 as alleged by some of the defendants of the second party, the suit was
well within time. If it was in 1953, as alleged by the plaintiffs, then certainly the suit was all the more within a period of 12 years. In that view of the matter, I do not find any substance in the contention in regard to the bar of limitation against this suit.
10. No doubt, the finding is in favour of the appellants about the reversionary heirship of Jadunandan Sharma but that cannot at all be susatined in view of some unimpeachable fact that has come in evidence but unfortunately not noticed by the trial court. Jadunandan Sharma examined himself as D. W. 1 for the defendants first party and he asserted that he was the sister’s son of the deceased Deonandan Singh. The plaintiffs’ case was that his mother was not the sister of Deonandan Singh, but the daughter of Saligram Singh, eldest brother of Nanhku Singh, who had no daughter. In Court D. W. 1 deposed that he was 48 years old. In cross-examination he was confronted with his previous statement, which he made in a partition title suit No. 2 of 1944 in the court of subordinate Judge at Patna, where he had stated in 1945 that he was 45 years old and that his mother had died in 1313 Fasli corresponding to 1906, leaving him when he was 5 years old. By this statement, Jadunandan Sharma was born near about 1900 or 1901. The previous deposition has been marked Ext. 8/a, which was given on the 1st June, 1945, His father also was another defendant in that partition suit and gave evidence. His deposition is Ext. 8/b. He stated to the same effect that his wife died in 1313, leaving Jadunandan Sharma, a child of 5 years of age. Learned counsel appearing for the appellants contended that these statements in Exts. 8/a and 8/b of Jadunandan and his father cannot be taken as substantial evidence and at the most, under Section 145 of the Evidence Act they were only for the purpose of contradicting the witness, namely Jadunandan, in the present suit. I do not think that this approach is correct, so far as the statement of Jadunandan’s father, who is admittedly dead, is concerned. His evidence will be admissible under Section 32 (5) of the Evidence Act and, therefore, the age of Jadunandan, as given by him, is to be taken as substantial evidence and that will be enough to discredit Jadunandan’s evidence in the present suit where he has stated that he was 48 years old in November, 1959, when he deposed.
11. Coming to the evidence of another witness examined on behalf of defendants, D. W. 11, who was 75 years old, when he deposed in court in this case, he stated that Nanhku was 1 or 2 years older than him, which would mean that Nanhku was born near about 1882 and would be only 19 years old in 1900 or 1901. It is impossible to conceive that a person of that age would be able to have a grand-son in 1900 or 1901 in the shape of Jadunandan Sharma. He could not have a daughter by that time who could have begotten Jadunandan Sharma. This evidence is sufficient to repel the defendants’ contention that Jadunandan Sharma was the sister’s son of Deonandan Singh, and lends great probability to
the plaintiffs’ case that he was the grand-son not of Nanhku but of Saligram, Nanhku’s eldest brother. In that view of the matter, the conclusion arrived at by the trial Court that the plaintiffs were not the presumptive reversioners cannot be upheld. The plaintiffs, therefore, were entitled to maintain the suit, as the nearest reversionary heirs of the deceased husband of defendant No. 4, if not otherwise disabled
12. Another point, which was stressed on behalf of the appellants was that defendant No. 13, who was a member of the defendants second party, died during the pendency of the suit in August, 1959, but her legal representatives were not substituted. She was a transferee from defendant No. 2 in respect of khata No. 168, plot Nos. 2808 and 2809 having a total area of 1.56 acres, as staled in the written statement filed on her behalf during the trial. In the memorandum of appeal in this court, her legal representative has been impleaded as respondent No. 14 under an order dated the 26th August, 1960, passed by this Court. In my view, there is no question of abatement of the whole suit on account of the non-substitution of the legal representative of the deceased defendant No. 13 for two reasons; one is that her interest is separable and even if she is held not bound by the decree that may be passed in this suit, that will not affect the whole suit at all in any way. But the more important reason is that she was not a necessary party in the suit. Her transferer, namely, defendant 1 was a necessary party and the suit was to proceed against them. If the alienaiton in his favour is found to be defective and not valid, in that case his transferee will automatically cease to have any interest in the property. This is not a suit for recovery of possession in which case there would have been difficulty in recovery of possession from defendant No. 13 or her legal representative, in case she or he (legal representative) was not a party to the suit at the time the decree was passed. But the suit being of declaratory nature her absence or for matter of that, her legal representative’s absence, will not affect the suit. I do not think, there is any substance in this contention of the appellants.
13. Learned counsel, however, pressed that the suit was otherwise not maintainable in view of Section 14 of the Hindu Succession Act and Section 4 (a) of the Bihar Land Reforms Act. Admittedly, the estate in which the suit land was situated vested in the State of Bihar on the 26th January, 1955, under the Bihar Land Reforms Act. The present suit was instituted about two years thereafter, i. e., on the 7th January, 1957. By that time all interests of the proprietor, including the right to receive rent had been wiped out. Section 6 of the Bihar Land Reforms Act provides that the lands in khas possession of the proprietor can be retained but in this case and that was also admitted by the plaintiffs, the settlees, namely, defendants 1 to 3, and not defendant No. 4, were in possession long before and on the 26th January, 1956, the date of vesting. The settlees had already come in possession since 1953, in
that view, the suit property could not be retained under Section 6 by the ex-proprietor. She could not maintain the suit for recovery of possession after vesting nor the presumptive reversionary heirs of her deceased husband could maintain such a suit, the right of possession and title to such land having been statutorily lost.
14. The present suit was not for recovery of possession but for declaration that the settlement was invalid. That would only mean if the declaration is granted, the reversionary heirs would be entitled to possession of the suit property on the death of defendent No. 4. That cannot be possible in view of the fact that the property had already vested in the State and that the State was entitled to receive rent of the properties from defendants 1 to 3 or their transferees, who are to be treated as tenants on account of their being in possession on the date of vesting. A suit of the present nature cannot be conceived of at a time when defendant No. 4 will die, and, therefore, such a suit also will not be maintainable even during her life time. This position is inevitable on account of the consequence flowing from the enforcement of the Bihar Land Reforms Act and the wiping out of the interest of the proprietor in the estate. Whosoever was in possession of the land on the date of vesting will be the tenant under the State and any other person will cease to have any interest therein. In that view of the matter, the contention of learned counsel is bound to prevail against the maintainability of the present suit by the reversionary heirs.
15. If the defendant No. 4 could have been entitled to retain this land after the vesting of the estate on account of the finding that the settlement was invalid, she would have obtained absolute ownership in respect of that property under Section 14 of the Hindu Succession Act, which came into force from the 17th June, 1956 A suit by the reversioners after that date in respect of that property could not have been maintainable also on that account. In any view of the matter, there is no escape from the conclusion that the present suit was not maintainable. In support of this contention, learned counsel relied on a Bench decision of this Court in Sital Prasad Singh v. Kuldip Singh. 1959 BLJR 669. To meet the point, learned counsel for the respondents urged that in the reported decision the bakasht land does not seem to have been transferred, which was challenged by the reversioners. Though it is not mentioned clearly, it appears from paragraphs 7, 10 and 11 of that judgment that the lands in dispute were culturable lands and they had been settled by the proprietor. The position, therefore, was not in any way different from settlement of bakasht lands, as is in the present case. Whatever the nature of the land may be, if it is a settlement by a proprietor of any land to which he has right to possess as a proprietor, he would cease to have any interest in the land if he was not in “khas possession” of that land on the date of vesting of the estate. In my view, the case referred to is on all fours to the facts of the present case.
16. The result is that this appeal must be allowed, the judgment and the decree of the trial Court must be set aside and the plaintiffs’ suit must be dismissed. But in view of the circumstances of the case and the inevitable result on account of the consequences flowing from the Bihar Land Reforms Act, the parties are directed to bear their own costs throughout.
G.N. Prasad, J.
17. I agree.
