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Suraj Prasad and anr. Vs. Mt. Gulab Dei - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1937All197a
AppellantSuraj Prasad and anr.
RespondentMt. Gulab Dei
Excerpt:
- - that hazari lal had further instructed his wife that should he fail to give effect to his wishes and execute the necessary deed, she would execute a document for the said object; that hazari lal died suddenly of heart failure and consequently could not give effect to his said wishes by executing the contemplated document; 5. it is well settled that a hindu male may grant a power of appointment to another person and mt. janki kuer may well be said to be the donee of such a power given to her by her husband. the rights of the other daughter in the property given to one, but that after all is a small matter and the intention of hazari lal might well have been to make-the daughters absolute owners of certain, moveable properties. although-there is no specific bequest to the issues of.....1. this is an appeal by the defendants against whom the plaintiff's suit for possession of certain zamindari and house properties, together with rs. 2,000 as mesne profits, has been decreed by the court below. apart from the general plea that the plaintiff is entitled to no relief, it is contended that in no event is she entitled to item 3, schedule c of the plaint, because that property cannot be said to be an accretion to the estate claimed by the plaintiff. the facts are that one hazari lal was the owner of considerable zamindari and house properties; he died on 30th april 1911 leaving behind him a widow, mt. janki kuer, and two daughters, mt. gulab dei (the plaintiff in the present suit) and mt. rajrani. mt. janki also died on 10th august 1913 and mt. rajrani died on 13th august 1929......
Judgment:

1. This is an appeal by the defendants against whom the plaintiff's suit for possession of certain zamindari and house properties, together with Rs. 2,000 as mesne profits, has been decreed by the Court below. Apart from the general plea that the plaintiff is entitled to no relief, it is contended that in no event is she entitled to item 3, Schedule C of the plaint, because that property cannot be said to be an accretion to the estate claimed by the plaintiff. The facts are that one Hazari Lal was the owner of considerable zamindari and house properties; he died on 30th April 1911 leaving behind him a widow, Mt. Janki Kuer, and two daughters, Mt. Gulab Dei (the plaintiff in the present suit) and Mt. Rajrani. Mt. Janki also died on 10th August 1913 and Mt. Rajrani died on 13th August 1929. Suraj Prasad, defendant 1, aged about three years, at 4he time of the (institution of the suit is the son of Mt. Rajrani and Lachmi Chand, defendant 2, was the husband of Mt. Rajrani. He too died during the pendency of the appeal and his representatives have been brought on the record. When Hazard Lai died, Mt. Rajrani had already been married, but Mt. Gulab Dei was unmarried and remained so even at the time of the death of Mt. Janki. The case for the plaintiff was that Lachmi Chand, defendant 2,

was a person of scheming and avaricious nature and Mt. Janki Kuer was always apprehensive that he might after her death try to deprive the plaintiff of the properties which she would inherit as an heiress to her father after Mt. Janki Kuer's death,

and

that in view of these apprehensions Mt. Janki Kuer executed a registered will on 11th July 1913 by which it was provided that the plaintiff should live after the death of Mt. Janki Kuer with her maternal uncles, Lalas Jai Narain and Prag Narain at Etawah, who were to look after her as her guardians and were also to arrange for her marriage, and certain penal provisions were laid down if defendant 2 felt inclined to marry with the plaintiff.

2. The plaintiff goes on to say that:

Mt. Janki Kuer, under the impression that her two daughters would equally, succeed to their father's property as life-tenants after her death and in order to avoid disputes that might arise between them in the enjoyment of the aforesaid properties, further thought fit to divide the immoveable properties in two lots alleging in the aforesaid will that she was authorized to do so by her late husband and also directed the moveables and their sale proceeds to be equally divided between them after her death;

that immoveable properties mentioned in lots Nos. 1 and 2 in the aforesaid will were devised to the two daughters for their lifetime only and that on the death of Mt. Janki Kuer the names of both Mt. Rajrani and the plaintiff were entered in Government papers in respect of the zamindari properties mentioned in lots Nos. 1 and 2 as detailed in the will, and Mt. Rajrani remained in enjoyment of the profits and income accruing from the properties mentioned in lot No. 1 till her death. Mt. Rajrani died on 13th August 1929 and the name of defendant 1 was mutated over the properties mentioned in lot No. 1 of the will and the plaintiff who was a young widowed purdanashin lady and lived in the District of Allahabad did. not become aware of the mutation proceedings and could not prefer objections thereto, and that she came to know of the entry of the sic of defendant 1 in the revenue papers in the course of proceedings taken by defendant 1 for substitution of his name in place of Mt. Rajrani Kuer in Civil Suit No. 160 of 1929 which was pending in the Court of the learned Munsif of Akbarpur at Cawnpore. This, it is said, afforded the plaintiff a cause of action for the present fiuit, because the plaintiff is entitled to the entire property left by Lala Hazari Lal as the next heir to him, and Mt. Janki Kuer,

when the executed the will, purported to act under the authority of her husband Lala Hazari Lal, and the arrangement made by her in the said will for the separate possession and enjoyment of the properties left by Lala Hazari Lal to be held by the daughters5 during their lifetime leaves the right of one daughter to succeed to the share so held by the other on her death unaffected.

3. Upon these facts the plaintiff claimed to recover possession over immoveable properties detailed in Schedules A, B, C and D of the plaint and for Rs. 4,022-13-6 as mesne profits. As stated before, the plaintiff's suit for the recovery of possession over immoveable properties mentioned in the plaint (with a few exceptions about which there is no controversy) and Rs. 2,000 as mesne profits has been decreed by the Court below. The defence to the suit was that the properties in suit had been grossly overvalued ; that Lala Hazari Lal who had no male issue had on several occasions expressed his desire and intention that his property after the death of his wife should be divided between his two daughters in a way so as to constitute them separate owners of the properties to be allotted to them respectively with no rights of survivorship inter se; that on the death of one daughter the properties allotted to her would go to her issues and in case she died childless her property would devolve on the children of the deceased daughter's husband from another wife; that Hazari Lal had further instructed his wife that should he fail to give effect to his wishes and execute the necessary deed, she would execute a document for the said object; that Hazari Lal died suddenly of heart failure and consequently could not give effect to his said wishes by executing the contemplated document; that in July 1913, when Mt. Janki Kuer apprehended that her end was approaching, she in order to carry out the instructions of her deceased husband for effecting an absolute partition between the two daughters with no rights of survivorship inter se, executed a will on 17th July 1913 and sic defendant 1 became the exclusive owner of the property entered in lot No. 1 of the will after the death of his mother Mt. Rajrani. It was said that the plaintiff had all along been recognizing Mt. Rajrani's right and title to the property in suit and had been permitting defendant 1 and his mother Mt. Rajrani to act upon the belief that they were separate owners of the property in suit, and thus the plaintiff's suit was barred by time and estoppel. Certain specific objections were taken to certain specific items of property and it was said that they did not form part of the estate of Hazari Lal.

4. It would thu3 appear that the first question which we have got to decide is as to the nature of the estate that was taken by Mt. Rajrani after the death of Mt. Janki Kuer. It is strenuously contended on behalf of the defendants that* when Mt. Janki Kuer executed the will in. question she was not executing any document on her own behalf but on behalf of her husband in pursuance of the authority conferred on her by her husband. The learned Subordinate Judge has accepted this aspect of the case and has held 'that Mt. Janki Kuer was quite competent to execute the will.' What this exactly means is not quite clear, but we believe that the learned Subordinate Judge was of the opinion that Hazari Lal had instructed! his wife to execute the will in question and' as such the document printed at p. 55 of our record should be considered for practical purposes as the will of Hazari Lal)(who being a separate and sole owner of the property in question was undoubtedly entitled to execute a will) and the will of Mt. Janki Kuer should not be altogether ignored as being a document executed by a Hindu widow with a life-estate only. The will describes that it is being executed, in accordance with the directions of the husband; it is a registered document and is attested by as many as 13 witnesses, some of whom are relations and about; whose respectability there can be no question. Durga Prasad and Kalyan Chand, two very respectable witnesses whosef evidence remains unrebutted and whose testimony has been believed by the Court below, have deposed as to directions which were given by Hazari Lai to his wife in regard to the division of property betwees his two daughters and as to the fact that the conditions entered in the will were according to the wishes of Hazari Lal. These witnesses, as we said before, have been believed by the Court below, and we have also after a perusal of their evidence come to the same conclusion.

5. It is well settled that a Hindu male may grant a power of appointment to another person and Mt. Janki Kuer may well be said to be the donee of such a power given to her by her husband. We need mention only the case in Bai Motivahu v. Bai Mamubai (1897) 21 Bom 709 in support of this proposition, and there can be no question that ever Since the death of Janki Kuer the will executed by her was recognized. Mutation of names over lots 1 and 2 described in the will was effected in accordance with the directions contained in the will. In an application dated 3rd January 1919 for obtaining a certificate of guardianship of the person and property of Mt. Gulab Dei, B. Kishori Lal, the grand father-in-law of Mt. Gulab Dei, mentioned that no guardian of the person and the property of the minor had up to that time been appointed by the Court; but Mt. Janki Kuer, the mother of the minor, had under a will appointed her own brothers B. Jai Narain and Prag Narain the guardians of the minor till her marriage for the period of minority and they had been safeguarding the person and property of the minor bill her marriage which was performed with Kalyan Chand about two years ago. On 10th September 1919 Mt. Rajrani made an application to the revenue Court for correction of certain papers in which also the will executed by Mt. Janki Kuer was mentioned in the forefront as the basis of the application. Although this applica-tion was contested by Mt. Gulab Dei by a petition dated 11th November 1919, the will executed by Mt. Janki Kuer was again invoked, and when the Assistant Collector came to decide the matter he also proceeded on the basis of the will. In 1920 Mt. Gulab Dei instituted a suit against Mt. Rajrani and others in which also the specifications made in the will were recognized and the judgment of the learned Munsif dated 12th August 1920 gave effect to those specifications. A suit was filed on behalf of Mt. Gulab Dei, on 18th May 1922 against Kunwar Abdul Ghaffar Khan, for the recovery of mortgage money and it was stated therein that B. Hazari Lal, father of the plaintiff, was the principal mortgagee, and after his death the plaintiff alone became, in accordance with the will executed by Mt. Janki Kuer, the mortgagee of the property in dispute. Similar suits were filed by Mt. Gulab Dei and Mt. Rajrani against Manmohan Das and others in 1927.

6. We have then got to see as to what was the nature of the estate that was given to the daughters under the will, and although witnesses have deposed vaguely that an absolute estate was conferred on the daughters, we have come to the conclusion that under the circumstances of the case we should look into the provisions of the will in order to decide that question. It is said that certain conditions entered is the will, as regards the division of certain sale proceeds, trees, debts, cash, and ornaments, make it clear that the corpus was divided equally between the daughters, and no provision was made for preserving. the rights of the other daughter in the property given to one, but that after all is a small matter and the intention of Hazari Lal might well have been to make-the daughters absolute owners of certain, moveable properties. The controversy before us centres round immoveable property, and regarding that the provision is contained in para. 10 of the will which reada as follows:

Both the daughters shall have full powers to; appropriate the profits from all the zamindari villages, groves and houses, etc., but they will note., be authorized to sell or mortgage the property or to transfer the same to their respective husbands.

7. On behalf of the plaintiff it is argued that this is a clear provision indicating the limited extent of the rights of the daughters limited for their lives only, because there is a definite prohibition against alienation and there are no words in the whole of the will making the daughters malik kamil of the lots allotted to them; on the contrary paras. 1 and 2 of the will say that the lots shall remain in the possession of the daughters and they should appropriate the profits thereof. The provisions regarding forfeiture, even though they may be void, point to the same conclusion. The contention on behalf of the defendants is that the prohibition against; alienation is confined to the cases of the husbands of the daughters. We do not; think that the aforesaid provision is capable of that interpretation. The words in the Vernacular make it quite clear that there was an absolute prohibition against selling or mortgaging the property, and it was farther provided that the transfer by the daughters to their respective husbands-even would also be invalid. Although-there is no specific bequest to the issues of the daughters, yet it is said that as there is a direction that if no son or daughter is born of the daughters, the sons born to the husbands of the daughters by their second wives would be the owners of the entire properties like the daughters, and from this it is argued that a bequest in favour of the sons of the daughters should be deemed to, exist, by necessary implication. Assuming; for the sake of argument that this is so, it cannot throw any light on the question under discussion.

8. There is a clear prohibition regarding [alienation and designation of persons to come after her, such persons not being her heirs under the Hindu law, for instance the sons from the second wife of the husband, and this shows that the estate given to the daughters was not an absolute estate. The case in Radha Prasad Mullick v. Ranee Mani Dassi (1908) 35 Cal. 896 supports the contention of the plaintiff. The estate given to the daughters is clearly an estate limited to their lives like an estate which they would have taken by inheritance as heiresses to their father, and although there is no mention of the rights of survivorship inter se, it is clear that the rule of Hindu law was not intended to be abrogated. In this view of the case, the plaintiff would be entitled to the entire estate of Hazari Lal after the death of Mt. Rajrani. The next contention advanced on behalf of the appellants was that even if the estate given to the daughters be not considered to be an absolute estate, it is undoubtedly in the nature of a stridhan, being a gift made by the father, and this not being sulka stridhan devolves on a son in the absence of other heirs to the exclusion of the sister. Our attention was drawn to the case in Basant Kumari Debi v. Kamikshya Kumari Debi (1906) 33 Cal. 23. In this case it was held by their Lordships of the Privy Council that under a deed of gift made by a Hindu in favour of his sister the property comprised therein became her 'ayautuka stridhan.' The argument that in the case of such stridhan the property devolves on a daughter in preference to the son and in the will in 'question the property devolves by implication in the first instance on the son and even to the son of the second sic of a husband and therefore this cannot be considered to be 'ayautuka stridhan' may be said to be answered by what there Lordships observed at p. 28 in the case mentioned above that the words

'On your death, your husband, sons, grandsons. and other heirs in succession will continue to enjoy and possess' are sufficient to show that the heirs were to succeed as such, notwithstanding that those who would take as heirs are named in wrong order, or (in other words) there is an inaccurate enumeration of them.

9. Our attention was also drawn to the case in Rao Narsingh Rao v. Beti Mahalakshmi Bai A.I.R. 1928 P.C. 156 where at p. 914 it is said:

In their Lordships' opinion there is nothing so far in the deed to cut down the gift or prevent the Rani from taking such an estate in the properties, which are the subject of the gift, as a wife taken in immoveable property given her by her husband. According to the Hindu law, such property is taken by her as stridhan and is descendible to her heirs and not to his.

10. Their Lordships in that case after quoting certain provisions of the will, say:

These provisions, which are only material in so far as they show the intention of the settlor, in their Lordships' opinion clearly show that it was the intention of the settlor that she should not only have the estate, which under Hindu law a woman has in property given her by her husband, but should also have power to alienate it to her daughter or her daughter's son, thus enabling her, it may be observed, to prefer the daughter's son to the daughter's daughter, who would be a preferential heir to her stridhan. The effect was, whilst leaving the property to descend as stridhan and so exclude Balwant Singh, to enable the Rani to transfer it as she was expected to do, to the daughter's son if there was one.

11. In this view of the case it is said that the son of Mt. Rajrani would be a preferential heir. It is, however, pointed out on behalf of the respondent that before any property can be deemed, to be the stridhan of a woman it must be quite clear that she has the power of alienation and such a power is cut down only in the case of a gift made by the husband to the wife, but in every other case the woman has absolute exclusive dominion over the property and has power to sell or give it away as she pleases. Sir Dinshaw Mulla at p. 135 of his book 'Principles of Hindu Law' Edn. 8, quotes various texts bearing on the subject and considers judicial decicions and observes that their, effect is that eyery kind of stridhan is capable of disposal by a woman. except such property which she has got by a gift from the husband. The present must be considered to be the case of property bequeathed by a father and as such if there is a prohibition against alienation, the property cannot be said to be stridhan, and the case in Basant Kumari Debi v. Kamikshya Kumari Debi (1906) 33 Cal. 23 is distinguishable, because there although the gift was by a brother to the sister the words in the document:

baki durobasta bhumi tamam hamal hulcukey amar, stye satyahan o sadhinota, unquestionably mean, 'you will possess them in your own right with the same right as I possess them without any hindrance,' and would indicate that he placed her in exactly the same position, as he himself occupied, in the property, which he was ;giving to her. The expression tamam kamal hulcuk is Persian in its origin and convey the idea of absoluteness. The mere fact, therefore, that at one place he says, 'you shall enjoy during your lifetime' cannot have the effect of cutting down the absolute gift which he had made by the former expressions.

12. We have already said before, that the daughters were positively prohibited from alienating the property, and. there are no words like malik kamil in the whole of the document and, as such we are of the opinion that the property given to the daughters cannot be said to be stridhan property. It is, however, argued that the estate given to the daughters was a stridhan estate and the conditions regarding inalienability should be construed as void. We do not see our way to accept this argument, regard being had to what was observed by the Judicial Committee in Mahomed Shumsool Harda v. Shewukram (1874) 2 I.A. 7 (P.C.) that:

In construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property. It may be assumed that a Hindu generally desires that an estate, specially an ancestral estate, shall be retained in the family, and it may be assumed that as a general rule, at all events, women do not 4ake absolute estates of inheritance, which they are enabled to alienate.

13. The position therefore is that the daughters did not get an absolute estate in the dots given to them under the will nor did they get them as stridhan property, and although there is no mention that one of the daughters would take the entire property by survivorship after the death of the other daughter to the exclusion of her son, it is impossible to hold that there was any intention to exclude the ordinary rules. of Hindn law. The only way' in which the document can be interpreted is by holding that the intention of the testator (Janki Kuer or Hazari Lal) was to make a division of the properties between the two daughters for facility of management and enjoyment, and it is conceded that such a division would not affect the rights of. survivorship.

14. It is then contended that there was a bequest in favour of the sons of the daughters and, as we mentioned before, although there is no specific bequest in favour of the issues of the daughters, it is said that such a bequest follows by necessary implication from the fact that the son of the husband by the second wife is specifically mentioned, and the submission is that it would be absurd to provide for a contingency when, she has no issue and not provide for the contingency when she has one. The reply to this contention is that the bequest is invalid, because there was no son in existence at the time of the death of the testator who must be deemed to be Hazari Lal in the present case. In Bai Motivahu v. Bai Mamubai (1897) 21 Bom 709 it was held that a gift (or bequest) could be valid only under the following restriction that the taker so designated must have been either actually or in contemplation of law in existence at the death of the testator. No son was born to either of the daughters at the time of the death of Hazari Lal or even at the time of the death of Mt. Janki Kuer and, as such, the bequest is invalid and the property reverts to the testator from whom it comes to his legitimate heir who is the plaintiff in the present case. Moreover, it was also held in the well known Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1872) 1 I.A. Sup Vol 47 that the gift must be made to a person in existence at the date of the gift or at the death of the testator as the case may be, and it is not open to a Hindu to change the line of succession, as has been attempted to be done in the present case, by providing for the inheritance to go to the son of the husband of the daughter by a second wife. The appellant seeks to get some strength from the provisions of the Hindu Disposition of Property Act of 1916, but this Act cannot be retrospective in effect. In 26 A 1 J 897/ the learned Judges of this Court observed at p. 902:

The Legislature has now removed the disability by the Hindu Disposition of Property Act (No. 15 of 1916)sic That Act however is not retrospective and affords no assistance to the appellant,

and at p. 911 their Lordships of the Privy Council observed:

Unfortunately under a rule of law which has now been altered by the Legislature but not retrospectively, the provisions of the deed in favour of Balwant's unborn son are void and inoperative.

15. The implied bequest in favour of the unborn son must therefore fail. The next contention is, and that is mentioned nowhere in the pleadings in the Court below or even in arguments there but only in the fourth ground of appeal to this Court that:

The principle of bequest to an unborn person has no application to the present case, for the period to be considered is the death of the first taker Rajrani and not the death of Janki Kuer and, as a matter of fact, a daughter Mt. Tara was born to Rajrani in 1911 prior to the death of Janki Kuer and still alive.

16. It is manifestly incorrect to say that the period to be considered is the death of the first taker Mt. Rajrani. Suraj Prasad would be born, according to the age given in the plaint, some time in 1927, and he was not in existence either at the time of the death of Hazari Lai or even of Mt. Janki Kuer. Mt. Tara, a daughter of Rajrani, is mentioned for the first time, as we said before, in the grounds of appeal to this Court, and it is said that she was born in 1911 and Janki Kuer died in 1913. 'We find no mention of Mt. Tara in the whole of this case either in evidence or in arguments, and if we were to consider this aspect at all, we would have to remit an issue, and the question is whether under the circumstances of this case such a procedure is called for. Even according to the grounds of appeal Mt. Tara was born only in 1911, and it is not clear that she was born before the death of Hazari Lal; at best she might be in the mother's womb and as such in existence in contemplation of law. The plaintiff distinctly said in the plaint that she was entitled to succeed as the next heir of Lala Hazari Lal, thus alleging that there was no bar to her succession by reason of the existence of any intermediate person, and it was up to the defendants to allege such a bar. We are of the opinion that we shall be opening the door to perjured evidence, if we were to allow this plea to be taken at this late stage. The plea of estoppel takenjjy the appellants cannot be of any sic It is true that the will was never challenged by Mt. Gulab Dei, the plaintiff, but it cannot be argued that she is challenging it even now. As a matter of fact, it is said on her behalf that she is entitled to get the property, because the will has now under the circumstances of the present case lost all operative force. Nor can it be said that by reason of any representations made by Mt. Gulab Dei, the position of Mt. Rajrani was in any way prejudicially affected; nor again can it be said that Mt. Gulab Dei could take the property only under the will and had no other vestige of title.

17. It was then argued that the possession of Mt. Rajrani was adverse and she therefore prescribed a title for herself descendible to her heir, namely the defendant Suraj Prasad, her son. The contention is that in the presence of Mt. Gulab Dei, the unmarried daughter of Hazari Lal, Mt. Rajrani was not entitled to inherit, and if she entered into possession without any lawful title after the death of Mt. Janki,, on 10th August 1913, then, by having remained in possession up-till 13th August; 1929, when she died, she became the-absolute owner of lot No. 1. In view of what we have said before regarding the nature of the estate taken by Mt. Rajrani., it is clear that she by her possession was. not prescribing for an absolute estate but only for a daughter's estate. The estate-was not even a heritable one, because then her step-children would not be her heirs in the presence of her husband as provided in the will, and even if a bequest in favour of the son be implied under the terms of the will, the bequest in favour of the son is not by virtue of the fact that he is an heir to Mt. Rajrani, but is a independent bequest by the testator himself. Mt. Rajrani entered into possessions under the will and she could only prescribe for such estate as the will gave her.

18. The will, we have held before, gave her a daughter's estate, and she entered into possession of a limited interest. Possession of limited interest in immoveable property may be adverse for the purpose of barring a suit for recovery of that interest, and if Mt. Gulab Dei had brought at suit for possession, on the ground that as) an unmarried daughter she had a prefer. ential right as compared with Mt. Rajrani against the latter after she had been in possession for more than 12 years, her suit might have been dismissed, but the adverse possession of Mt. Rajrani is good, only to the extent of that limited interest!-and when that limited interest has vanished with her death, her son cannot derive any benefit. In Lajwanti v. Safa Chand A.I.R. 1924 P.C. 121 where a Hindu widow entered into possession of the property of her husband as-the widow of her husband, it was held: that her adverse possession enured for the benefit of the husband's estate and the reversioners entitled thereto. We are, therefore, of the opinion that the plaintiff's suit is not barred by limitation and it is not necessary to discuss in great detail a novel proposition of law advanced on behalf of the plaintiff-respondent by Dr. Katju. He argued that an unmarried daughter is entitled to preference as long as she remains unmarried, and when she marries her preference comes to an end; thus Mt. Rajrani's possession, even if it was possession of a complete interest in the property, was for only four years, that is to say, from 10th August 1913 when Janki Kuar died up to 1917 when Mt. Gulab Dei was married. We think the text of the Mitakshara, Chap. 2, Section 2, paras. 1, 2 and 3, makes it clear that the unmarried daughter comes as a class in preference to the married daughter. This was the view taken by the Bombay High Court in Jamnabai v. Khimji Vullubdass (1890) 14 Bom 1 It is not necessary to pursue this matter further, because we are of the opinion that the possession of Mt. Rajrani was not of a complete interest in lot No. 1 but only of a limited interest.

19. The next question that we have got to determine centres round the plea taken by the defendant that the plaintiff in no event is entitled to item 3, Schedule C of the plaint, because that property is not an accretion to the estate claimed by the plaintiff. In the plaint it was taken for granted that the said property formed part of the estate of Hazari Lal. This property originally belonged to Tulshi Earn, and it may be assumed that after his death the property was owned by his brother Hazari Lal; but it is equally clear that in execution of a certain decree of the year 1907 the property was sold on 20th July 1915 and was purchased by one Sital Prasad. By that time Mt. Rajrani and Mt. Gulab Dei had been brought on the record as defendants to the suit-it may be that they were brought on the record as representatives of Hazari Lal or even Tulshi Earn-and the execution proceedings were taken against them. On 14th March 1919, Sital Prasad sold the said property to Pandit Earn Chandra and on 26th March 1919, Pandit Ram Chandra sold it to Lakshmi Chand alias Chhote Lai, defendant 2 in the present suit. The evidence makes it clear that the money for the purchase of 26th March 1919 came from the estate of Hazari Lal in possession of Mt. Rajrani. When these facts were established, it was argued on behalf of the plaintiff that the property should be deemed to be an accretion to the estate of Hazari Lal. The defendant, however, alleged that Mt. Rajrani had an absolute power of disposal over the usufruct of the property in her possession, and if she chose to purchase property out of such usufruct, such property could not be held to be an accretion to the parent estate. Various authorities, were cited before us as to the nature of the presumption that should be drawn in circumstances like these: on the one side it was argued that where property is purchased by a Hindu widow out of the usufruct of a property obtained by her from the last male owner, the presumption is that such property is at her unfettered disposal, being her separate property, and on the other side it was argued that in circumstances like these the presumption is that such property is an accretion to the estate.

20. It is not necessary for us to say where the presumption exactly lies, but there can be no doubt that apart from any presumption her intention as to how she proposes to keep the property will be the governing factor, and in the present case the purchase of this property by Mt. Rajrani out of the savings of the income in the name of her husband affords a clear indication of an intention to treat the property as her own. We are fortified in this view by the case in Nirmala Sundari Dassi v. Deva Narayan Das Choudhuri : AIR1927Cal868 . The case might be looked at from another point of view, and it is that the lady had some income in her possession; she was entitled to dispose of it as she chose and she gave the money to her husband for the purchase of the property and the husband purchased this property out of the money received from his wife over which money the wife had absolute control. We, therefore, hold the view that item 3, Schedule C of the plaint, cannot be treated as an accretion to the parent estate and must be regarded as the property of Chhote Lal, defendant 2, to which the plaintiff cannot lay any claim. No arguments were advanced before us on the plea that the properties in suit were overvalued or the plea that the amount of mesne profits decreed was excessive.

21. For the reasons given above, we allow this appeal to this extent that the plain, tiff's suit for possession of item 3, Schedule C of the plaint is dismissed. The mesne profits of this portion of the plaint property is agreed by the parties to be Rs. 100 and the decree for mesne profits, therefore, will be in the sum of Rs. 1,900. For the rest the decree of the trial Court is affirmed. The order of the Court below regarding proportionate costs to plaintiff and defendants will be maintained, only that the amount entered in the decree will have to be varied inasmuch as we are dismissing the suit of the plaintiff regarding one more item. In the appeal the plain, tiff will get 7/8th of her costs from the defendants and the defendants will get 1/8th of their costs from the plaintiff.


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