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Lachhmi Prasad Vs. Musammat Parbati and Musammat Sarupi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported inAIR1920All166; (1920)ILR42All266
AppellantLachhmi Prasad
RespondentMusammat Parbati and Musammat Sarupi
Excerpt:
.....tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - 1. by will, dated the 21st of july, 1907, din dayal directed that after his death his two wives, musammat sarupi and musammat ram dei 'will by all means be like myself the owners of and have authority over the properties of which i am up to this time in possession without the participation of any one else. , like myself. they may, if necessary, adopt a boy of good family according to their necessity. 199. that was a case very like the present one, with this exception that the testator by his will..........we ought to follow the propositions which the privy council laid down as regards the exercise of joint powers. we refer specially to page 225, where their lordships lay down in general terms the intelligible principle that where a power is given to a and b jointly, that power can be exercised only in the way directed by the donor namely, by a and b together doing the necessary acts. if it should happen that one of the joint donees dies, the survivor is not competent to perform the act which by the very directions of the testator require the concurrence of both. in this case the power to take in adoption ceased at the moment of the junior widow's death in 1911. as regards the disposition of the testator's property we are of opinion that the will gave the two ladies the whole of din.....
Judgment:

Grimwood Mears, C.J. and Pramada Charan Banerji, J.

1. By will, dated the 21st of July, 1907, Din Dayal directed that after his death his two wives, Musammat Sarupi and Musammat Ram Dei ' will by all means be like myself the owners of and have authority over the properties of which I am up to this time in possession without the participation of any one else. They will have all powers of transfer, gift, etc., like myself. They may, if necessary, adopt a boy of good family according to their necessity.' The testator died on the 19th of August, 1907. Both wives survived him, Musammat Ram Dei had a daughter, Musammat Parbati, who was the plaintiff in the original action, Musammat Ram Dei died in or about the year 1911, and on the 3rd of January, 1916, Musammat Sarupi executed a deed whereby she purported to adopt the appellant. The question in this appeal is whether, on the true construction of the will, it was competent for the senior widow to adopt to her late husband. If she were competent, then the appellant is, as he claims to be, heir to the estate of Musammat Ram Dei. We are of opinion that the power of adoption given by the will was a joint permissive one. It created no obligation to adopt, but it did require, first, a joint agreement to adopt; next, a selection of an heir by both of the wires; and finally a formal legal adoption. Our attention has been called to the case of Narasimha Appx Row v. Parthasarathy Appa Row (1913) I.L.R. 37 Mad. 199. That was a case very like the present one, with this exception that the testator by his will specifically gave a one-half share to each of his two wives. We, however, are of opinion that that difference does not create any real distinction and that we ought to follow the propositions which the Privy Council laid down as regards the exercise of joint powers. We refer specially to page 225, where their Lordships lay down in general terms the intelligible principle that where a power is given to A and B jointly, that power can be exercised only in the way directed by the donor namely, by A and B together doing the necessary acts. If it should happen that one of the joint donees dies, the survivor is not competent to perform the act which by the very directions of the testator require the concurrence of both. In this case the power to take in adoption ceased at the moment of the junior widow's death in 1911. As regards the disposition of the testator's property we are of opinion that the will gave the two ladies the whole of Din Dayal's property absolutely. It follows, therefore, that in our view the appellant is a complete stranger as far as regards any rights to any share in the property of the late Musam-mat Ram Dei, and therefore, agreeing as we do with the finding of the learned Subordinate Judge, we dismiss the appeal with costs.


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