1. This is a very sad case. The Story which has to be presently told is all the sadder, bacause it involves fiorsous vory highly placed in life. The following pedierao is important:
Maharani Jagdish=Maharajh Ripu=MaharaniKunwar died Daman Singh Sarojini4-8-1927 alias Gurchran Devi (Ju-Singh nior M.R.)MarriedRani Amrit Kuar, Born 1907. 10.10.1918Married February 1925=Raja of Kalsia
2. The plaintiff to the suit, who is the respondent before us, is one Mr. Gurcharan Singh who, till lately, was His Highness Maharaja Ripu Daman Singh of Nabha. Appellant 1, who was in the suit defendant 1, Hani Amrit Kuar, is the plaintiff's daughter by his Senior Maharani Jagdish Kunwar, who died on 4th August 1927. Appellant 2, who was defendant 2 in the suit, is one Gurdial. Singh Mann. He is the father of the late Senior Maharani Jagdish Kunwar, and therefore the maternal grand-father of Rani Amrit Kuar.
3. It is common ground that the Maharajah of Nabha and the Maharajah of Patiala fell out on some matters, details, of which do not appear on the record. The Government of India appointed Sir Louis Stuart as the Commissioner to inquire into the quarrel. Sir Louis, started his inquiry about 3rd January 1923. He submitted a report sometime, in April 1923, in which the Government of India passed its orders in July 1923. By these orders the Maharajah of Nabha was removed from Nabha and he came to live in Dehra Dun. The Maharajah was allowed to retain his title and salute and was given an allowance. But later, for reasons which do not appear on the record, the Government; of India took away the title of 'His Highness,' also the right to the salute of guns and he was deported to a place called Kodai-kanal in the Midraa Presidency and his allowance was reduced. The Government; of India decided that fche son of the late Maharajah, a minor then and a minor even now, should eventually succeed to the Gaddi of Nabha. The administration of Nabha was placed under an Administrator and an Assistant Administrator and later a Council of Regency was appointed. The Vlminiatrator of Nabha was one Mr. Wilaon Johnston, who eventually became tha President of the Council of Regency. Tha Assistant Administrator was one Sat'dar Bahadur Gurdial Singh Dulat, who is not to bo confounded with defendant-appellant 2 in this case. This gentleman is now a member of the Council of Regency. He is also a witness in the case.
4. This short statement of the recent history of Nabha has an important bearing on the facts of this case. The plaintiff's case is that he was in the bad boobs of the Government of India and was specially in the bad books of the Foreign Secretary, Sir John Thompson. When the inquiry started he was apprehensive of an unknown danger and thought it desirable that he should have some money so put away that he might have control over it after leaving Nabba, and with a view to effect that purpose he endorsed benami in favour of each of his wives a Government Promissory Note of the face value of 2 lacs of rupees and Mysore War. Bond of the value of Rs. 50,000. Accordingly, the Senior Maharani Jagdish Kunwar was in possession of a Government Promissory Note of the face value of 2 lacs of rupees and a Mysore Bond of the face value of Rs. 50,000. The Senior Mabarani was living at Mussoorie, and, there her own father appellant 2, who is said to be a disreputable man with no scruples, and other people surrounded the Maharani, and in order to misappropriate the plaintiff's money, goods and jewels of large value, brought about the death of the Maharani by slow poisoning. Among the said conspirators was the Maharani's own daughter appellant 1. Among the many misdeeds which it was alleged the persons surrounding the Senior Maharani did was that they removed her jewellery, forged a will purporting to have been made by the Senior Maharani in favour of her daughter and poisoned the ears of the Maharani against her husband, the Maharajah. The Maharani having died, probate was taken out of the will by her father as the executor. On these allegations the plaintiff seeks to recover from the defendants the appellants before us, a Government promissory Note of the face value of Rs. 2 lacs, a Mysore Bond of the face value of Rs. 50,000 and a fixed, deposit receipt for the sum of Es 54,078 of the Imperial Bank of India as the plaintiff's property. In the alternative the plaintiff asks for a decree for recovery of Rs. 3,04,078 as the value of iihe aforesaid articles.
5. Two written statements were filed one by mieh of the defendants and the principal pleas with which we are concerned wore that the Court of the Subordinate Judge at Dehra Dun had no jurisdiction to entertain the suit; that the transfer of tlio notes in favour of the Senior Maharani was not a benami transaction, but a gift out and for the benefit of the said Maharani ; that the Maharani was competent to give away or bequeath the Notes and that the fixed deposit con. sisted of money belonging to the Maharani herself and the plaintiff had nothing to do with the same. A large number of issues were struck in the caBe and as the result of their deoision the learned Subordinate Judge came to the conclusion that he had jurisdiction to entertain the suit ; that the endorsement in favour of the Senior Maharani on the Promissory Notes was made only with a view to keep the property of the plaintiff safe from the hands of the Government of India ; that the Senior Maharani had, therefore no power of disposal over the Notes and that the plaintiff had failed to prove that the amount of the fixed deposit with the Imperial Bank was his property. In the result the suit was decreed for recovery of the Promissory Notes and in the alternative for recovery of Rs. 2,50,000 the value of the Notes. The plaintiff's claim for recovery of the fixed deposit receipt or the amount thereof was dismissed. The parties were directed to receive and pay costs in proportion to their respective success and failure.
6. The two defendants have appealed and the plaintiff has filed a cross-objection with respect to the fixed dnposit. The case has been argued at great length, and we have had the privilege of hearing an elaborate argument in the case. The first question that arises naturally is that of jurisdiction, though it was not put forward on behalf of the appellants till the last moment and almost as a second thought. In our opinion there is no force in the contention that the Court at Dehra Dun had no jurisdiction to hear the suit. Even if it had no such initial jurisdiction, nothing has been addressed to us to show that the appellants have been prejudiced by the Dehra Dun Court assuming jurisdiction over the case, and therefore the plea of jurisdiction cannot affect our decision on the merits on appeal. The question of jurisdiction was put to us in this way: Defendant 1 is the wife of the Raja of Kalsia, a small State in the Punjab, yielding, as we are told in the course of the argument, a revenue of rupees four lacs a year. As it was not stated that defendant 1 lived within the local limits of the territorial jurisdiction of the Dehra Dun Court, the suit against her in the Dehra Dun Court was nob maintainable. Defendant 2 is a resident of the Nabha State, and accordingly he too was not within the local limits of the jurisdiction of the Dehra Dun Court. This argument is based on Section 20, Civil P.C., Clauses (a) and (b); but the argument of the learned Counsel on behalf of the appellants ignored Clause (c), Section 20 altogether. By Clause (a), Section 20 a Court will have jurisdiction to bear a case if all the defendants (where there are more than one defendant) reside within the local limits of its juris-diotion. By Clause (b) a Court will have jurisdiction if one or more of the defendants live within the limits of the local jurisdiction of the Court and such of the other defendants as do not reside within the said local limits, acquiesce in such institution or if the leave of the Court be obtained. Thus, if the suit had been instituted in the Court of the Kalsia State, that Court, if the Civil Procedure Code applied to the Kalsia Court, could not hear the case, unless defendant 2, who resided in the Nabha State, acquiesced in such institution, or unless the Court granted leave. The Clauses (a) and (b), therefore cannot constitute the whole law on the question of jurisdiction. In most of the cases of this nature the forum will have to be determined by the third Clause (c). The third clause of Section 20 says that a suit may be instituted in a Court within the local limits of whose jurisdiction the cause of action wholly or in part arises.
7. In the Pull Bench case of Murti v. Bhola Ram (1894) 16 All. 165 the expression 'cause of action' was defined as consisting of every fact which would be necessary for the plaintiff to prove, if traversed in order to support his rights to the judgment of the Court. This description of the cause of action was an adoption of what was laid down in the case of Bead v. Brown (1889) 22 Q.B.D. 128. It may be interesting to know that when this ruling was given the Civil Procedure Code of 1882 was in force and it laid down (Section 17), that a Court would have jurisdiction over a case if the cause of action for it arose within its looal limits. The words 'wholly or in part' after the expression 'the cause of action' were added when the Civil Procedure Code of 1908, the Act now in force, was passed. Even before the amendment it was held that a Court would have jurisdiction, even where the whole of the cause of action did not aocrue within its local limits, if only a material part of the cause of action so arose : see Banke Beharilal v. Pokheram (1903) 25 All. 48. In this case the endorsement was made in Delhi, and thereafter the Maharajah and his two wives came to live in Dehra Dun. Later on, the Senior Maharani moved to Mussoorie, a hill station within the local limits of the jurisdiction of the Subordinate Judge of Dehra Dun.
8. The cause of action of the plaintiff, as, defined in the case of Murti v. Bhola Ram (1894) 16 All. 165 would be all the faots, which the plaintiff must prove in the case, on their denial by the defendants, in order to receive the relief. The plaintiff has to prove first that he owned the Promissory Notes and the fixed deposit receipt in suit. Then he has to prove that his endorsement in favour of the Senior Maharani was benami; that the Senior Maharani, in breach of the trust reposed in her by the Maharajah by means of the benami transaction misappropriated the property to herself and transferred or bequeathed the property in suit in favour of her daughter; that the will of the Maharani was not the result of her free will, but was the result of improper influence brought to bear on her by the defendants and that the property sought to be recovered was within the jurisdiction of the Court. Out of the several faots that the plaintiff has to prove in order to succeed in the suit, the misappropriation of the property by the Senior Maharani, by the execution of the will and the misappropriation of the same by the defendants, took place at Mussoorie, within the local limits of the jurisdiction of theDehra Dun Court. Thus a part of the cause of action for the suit did arise within the territorial jurisdiction of the Dehra Dun. Court, within the meaning of Clause (c), Section 20, Civil P.C.
9. Again, the moveable property in suit is within the jurisdiction of the Dehra Dun Court. This fact, although nob specifically alleged in the plaint, is admitted on behalf of the appellants and is proved by the fact that the Dehra Dun branch of the Imperial Bank produced the Promissory Notes for the inspection of the Court and allowed photographs of the same to be taken. It is again common ground that the fixed deposit is with the Dehra Dun branch of the Imperial Bank. In the case of Gurdyal Singh v. Raja of Faridkot (1895) 22 Cal. 222 their Lordships remarked (at p. 238) as follows:
Territorial jurisdiction attaches...upon all persons either permanently or temporarily resident within the territory...exists always as to land within the territory and it may be exercised for moveables within the territory....
10. It does appear therefore that in suits relating to moveable property a Court, within whose jurisdiction the moveable property is kept, has jurisdiction to try the ease. In this view also the lower Court was not without jurisdiction. Further, the Civil Procedure' Code of 1908 by Section 19 enacts that
where a suit Is for compensation for wrong done...to moveable property, if the wrong is done within the local limits of the jurisdiction of one Court and the defendant resides within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.
11. In the case before us the allegation is that wrong was done to plaintiff's moveable property by its misappropriation and disposal by a parson who had held it for the plaintiff's benefit. Section 19 would therefore able jurisdiction to the Dehra Dun Court. Our opinion, on these grounds is that the Dehra Dun Court could hear the suit. Section 21, Civil P. C., lays down as follows:
No objection as to the place of suing shall be allowed, by any appellate Court...unless there has been a consequent failure of justice.
12. There can be no doubt that the suit could have been filed at Delhi where the plaintiff made the endorsement in favour of his wives, because that fact, undoubtedly doos constitute a part of the cause of action. In case of doubt as to whether the Delhi Court had jurisdiction of the Dehra Dun Court, the objection as to the Court healing the caso cannot be entertained by the appellate Court unless there has been a consequent failure of justice. Not a single word has been addressed to us to show that the defendants-appellants have suffered in any way owing to the Dohra Dun Court and not the Delhi Court hearing the suit. It is not alleged that because of the Dehra Dun Court hearing the suit the appellants were unable to produce the evidence which they could have produced in Delhi Court. Nothing of the sort has been suggested. On the other hand, the argument adduced as regards Section 21 was that the section applied only if the Courts in British India had jurisdiction to hear the suit and that the section did not apply where no Court in British India had jurisdiction. We pointed out to the learned Counsel for the appellants that a Court in Kalsia could not hear the suit, unless the defendant living in Nabha agreed, and the Court in Nabha could not hear the suit unless the defendant living in Kalsia agreed and we asked him to state where, supposing the plaintiff's case is true, he should have gone for redress. To this the reply given was that it was for the plaintiff to find out the right Court and it was not for the defendants to advise him. This answer, in our opinion, exposes the entire weakness of the defendants' contention. We have no doubt in our mind that if there was any defect in the jurisdiction of the Dehra Dun Court, the same is cured by the provision of Section 21, Civil P.C.
13. Next it was argued by the learned Counsel for the appellants that under the authority of the case of Gurdyal Singh v. Baja of Faridkot (1895) 22 Cal. 222 already quoted above, a Court has no jurisdiction over a defendant unless he should be resident within the local limits of the jurisdiction of such Court. The learned Counsel went so far as to argue that although the suit was instituted in a British Indian Court it had no right to apply the Civil Procedure Code to find out if it had or not jurisdiction to hear the case, and the appellate Court (ouerselves, in this case) had no right to hold that the defect was cured by applying a provision of the Civil Procedure Code, vide, Section 21. This argument in our opinion, does not merit serious consideration. Suppose an American comes to India and makes extensive purchases at Allahabad and then leaves the country without settling his bill. Can it be seriously contended that the purchaser cannot be sued in Court at Allahabad? A similar argument was repelled in Smith v. Indian Textile Co. : AIR1927All413 , by a Bench of this Court. The case of Gurdyal Singh v. Baja of Faridkot (1895) 22 Cal. 222 does not lay down that no person who does not reside within the local limits of the jurisdiction of a Court cannot be sued in it, even if the cause of action arose therein When a suit is instituted in a British Indian Court, that Court must determine whether it has jurisdiction to hear the suit or not, by the aid of the Civil Procedure Code, and that Code alone. We hold that the suit cannot be thrown out on the ground of want of jurisdiction in the Court below.
14. On the merits, the question is whether the transaction of endorsement was meant to be a benami transaction or whether it was a transaction by which it was contemplated to make a gift in favour of the Senior Maharani. For the present moment we shall keep the question of the ownership of the fixed deposit out of consideration. It is common ground that the Senior Maharani paid no consideration for the endorsement in her favour. It is common ground again that the plaintiff did apprehend fears as to the result of the inquiry then being conducted by Sir Louis Stuart. He could nob know what would be the result of the inquiry, whether it would go in his favour or against him, but he feared that there were officers in the Government of India who were not favourably disposed towards him and that he might have to leave the State. It was argued for the appellants that in view of the circumstances, it was as much probable for the plaintiff to make agift to his two wives in view of the danger that ha apprehended, as it was probable for him to keep the money for himself. It was further argued that of the two probabilities it was more probable that the husband should provide for his wives, both of whom he dearly loved at the time, than that ho should think to provide for hitnsolf. It was also argued that the probabilities being equal, if not more on the appellants' side, it was a matter of evidence and the plaintiff's evidence was not good enough to prove that he had made a benami transaction.
15. There can be no doubt that when a plaintiff comes to Court and says that the transfer he made was not really meant to operate as a transfer, the burden of proof is, initially, on him to show that his allegation is right, for, in the absence of any evidence on either side the plaintiff's suit would fail. Again, there can be Ino doubt that where a transaction is between a husband and wife and there is no consideration passing towards the husband from the wife who takes the (transfer, it would be for the wife to prove that the transfer was really meant to be for her benefit and not for the benefit of the husband himself. The point is covered by a decision of their Lordships of the jPrivy Council, and we do not think that jfchere is any room for argument. The case jjuet mentioned is that of Guran Ditto, v. T. Ram Ditto, A.I.R. 1928 P.C. 172. In this case the husband, who was the owner of the money in question, took away a sum of one lac of rupees from his current account and made a fixed deposit of the same with a bank jointly in favour of himself and his wife with instructions to the bank that the money was to be held by either of the depositors during their lifetime and by the survivor in the case of the death of one of them. On the death of the husband the question arose whether the money belonged to the wife or it still belonged to the estate of the husband and was therefore liable to be taken by the husband's heirs. Their Lordships of the Privy Council pointed out that where a transaction was without consideration, there was always a resultant trust in favour of the transferor, there being an exception, in England, in the case of a wife and a son, where the transfer would be deemed to have been made by the transferor for the advancement of the transferee (wife or son). Their Lordships further pointed out that this rule of English law did not apply to India, where the people were in the habit of making benami transactions even at a time when there was nothing to be immediately gained by such transfer. The presumption of advancement being absent in India, the presumption in India is that the gratuitous transfer results in the gratuitous transferee holding the property for the benefit of the transferor.
16. In view of this clear and direct pronouncement of their Lordships of the Privy Council, it lay on the appellants to show that the plaintiff made the endorsement for the benefit of the Maharani and for no other purpose. The burden therefore that initially lay on the plaintiff to adduce some evidence to show the benami character of the transaction is shifted to the persons claiming under the Maharani to show that a gift was intended. With these preliminary remarks we have to examine the evidence in the case. In this case the parties have adduced evidence and we have to sea whether the appellants have discharged the burden that lay on them after the plaintiff had shown that the transfer was a gratuitous one and in favour of a wife and, if they have sufficiently discharged that burden, whether the plaintiff has sufficiently rebutted the evidence adduced by the defendants. The defendants' case, that by the endorsement the plaintiff meant to make a gift pure and simple, is undoubtedly an after-thought. The Senior Maharani Jagdish Kunwar says in the will (we assume this in view of the fact that probate has been granted of the will) that the Promissory Notes were given to her by her husband in consideration of the fact that in 1904, when the plaintiff was yet an heir to the throne at Nabha, he on a visit with the Senior Maharani to Naini Tal had taken for his own purposes all the jewellery of the Rani and in lieu of the said jewellery gave her the Promissory Notes : see the will at pages 193 and 194. The defendants knew that the story was absolutely inoorreet and could not be established, and therefore they gave up the story and stated in the written statement that the transaction was a real transfer by way of gift made by a husband in favour of his wife :' see para. (25), defendant 1's written statement (p. 9) and para. (23) at p. 7 of the written statement of appellant 2. No evidence whatsoever has been adduced to prove that the plaintiff ever took any jewellery of his wife so far back as 1904, and it was by way of compensation to the Maharani that the Promissory Notes were transferred. In his evidence before the Court appellant 2 said that he heard the story from his daughter, the late Maharani, and at her instance put the fact in the will, which was drafted by him in English, the instructions being given in Punjabi : see p. 74. The story of the jewellery being taken by the plaintiff is not only denied on oath by the plaintiff, but is entirely contradicted by the Senior Maharani's prior will of 1915 : see p. 137. By that document Maharani Jagdish Kunwar bequeathed to her daughter. Amrit Kuar
all the jewellery given me on my marriage aa dowry...by the late Maharajah Hira Singh of Nabha as well as all other property and belongings, without exception of which I die possessed.
17. Below the principal clause in the will she appended a schedule describing some of the jewellery given on her marriage, and in the principal clause she said that the complete list was to be found in the Toshakhana' or the strong room of the Stato. Evidently if jewellery of considerable value had been taken away by the plaintiff in 1904, Jagdish Kunwar could not have bequeathed all ths jewellery given to her on her marriage as dowry. Then again it seems entirely incredible that, if the plaintiff during his younger days wasted some or all the jewellery of his wife, he did not give her enough to compensate her for the loss when he was on the throne of Nabha for so many years prior to his deposition. It is clear to our mind that when the will of 1927 was drafted, the man, who drafted it (it is immaterial whether the Maharani was fully aware of the contents of the will or not), thought it necessary to make an allegation of some consideration for the transfer and knew that in the absence of any allegation of the passing of consideration, it would be difficult to hold that a gift was intended by the plaintiff at a time when the fate of himself alone was unknown and when it was fully known that whatever happened to the Maharajah, himself his wives and children were sure to be provided for by the State. It goes without saying that the plaintiff as the Maharajah of Nabha in trouble must have known that the Government of India would pass orders of severity or leniency in accordance with the finding of the inquiring Judge, but that the Government of India would never do any injustice to his wives and minor children. It is a fact that a grant of three lacs of rupees was made for the marriage of appellant 1. In our opinion, therefore on the facts so-far stated there was no gift to the Senior Maharani and that the transaction was benami for securing to the plaintiff some money on which he could still lay his hand before the orders of the Government of India could be passed.
18. As regards evidence on either side, it consists that of witnesses and documents,. and we shall examine the defendants' evidence first because we have arrived at ths stage at which we have to see whether the story of the gift has been established or not. If that story has not been established, the suit must succeed. On behalf of the appellants certain circumstances have been relied upon to show that nothing but a gift could have been, made by the plaintiff. The circumstances are these: The Promissory Notes were held in safe custody by the-Imperial Bank Dehra Dun branch in the name of Maharani Jagdish Kunwar, that she drew the interest herself and that the plaintiff was in want of money and asked for monetary assistance from Maharani Jagdish Kunwar and, yet did not ask for the Promissory Notes.
19. These circumstances are very easily explained. The essence of a benami transaction is to give it the appearance of a reality, to cloak a fictitious transfer with all the appearances of a genuine one. Unless this is done, the object of a benami transfer is likely to be frustrated. If after the endorsement, the Promissory Notes were still kept in safe custody by the Bank as the property of the plaintiff, the endorsement by itself would be of little value. We have got it on the evidence of Mr. Wilson. Johnston, whom we have mentioned as the President of the Council of Eegency, that the Maharajah of Nabha was not allowed to take away any moveable property which the Administrator might think belonged to the State. We have got on the evidence of the plaintiff himself that so long as the plaintiff was the Maharajah of Nabha there was no distinction between the State purse and the privy purse, and between State property and the Maharajah's private property. This state of affairs in an Indian State has been recognized by their Lordships of the Privy Council in the case of Advocate-General of Bombay v. Amerchand 1 Knapp 329 F.N. a quotation from which is to be found in Vol. 12, English Beports (P.C), p. 344 (footnote). An Indian despotic ruler considers the entire income of the State as his own property and makes no distinction between the State property and his private property. In the oircumstances, when he is to leave the State, he has to leave everything behind, for there is nothing which can be described as his private property. Mr. Wilson Johnston says, p. 99:
The administration in a certain case put forward their claim to certain moneys and securities that the Maharajah had disposed of outside the State. I cannot recollect if any attempt was made to stop payment of moneys standing in the Maharajah's name in the Bank outside the State. It is possible that attempt was made, but I cannot recollect.
20. At another place the said witness (p. 98) suggests that any money advanced by the plaintiff before his deposition in July 1923 would be realizable by the State and not by himself and that all that the plaintiff was allowed to have was
only a certain allowance, to retain his title of Maharajah and salutes and was to be provided with a State house in Dehra Dun and Mussoorie. lie had nothing else to do with the State property.
21. No doubt these are facts that happened after the transfer of the securities but these are matters which could have been easily foreseen by the plaintiff as the Maharajah. If, therefore, he thought it necessary to transfer securities in the names of his trusted wives, he had also to see that the securities would be in the safe custody of a Bank and held by it not for the plaintiff himself but for his wives. The fact, therefore, that the securities were in the possession of the Maharani in the sense that they were held in her name by a Bank does not militate against the plaintiff's case that the transfer was merely benami. The second point is that Rani Jagdish Kunwar realized the inter-ost by the agency of the Bank drawing it from the Government Treasury and putting it into her current account with itself. There is again nothing sinister in this circumstance. The Eani had an allowance of only about Rs. 1,500 a month for herself and daughter (see p. 141) and if she had, besides her allowance granted by the State, been allowed by her husband to enjoy the interest which came to little over a thousand rupees a month, surely that cannot be taken as evidence-of the Maharani's ownership and not as evidence of plaintiff's anxiety that his wife and daughter should live comfortably. The third point is based on a letter of the plaintiff addressed to his daughter to be found at p. 181 of the printed book. It is dated 27th January 1927. It runs as follows;
My dear A.K. Sat Sri Akal,
I hope your mother is now better and free from fever. Please ask her and let me know i she can conveniently give me loan of some money and if so, how much, to enable me to go to Bombay. The two accompanying telegrams (original) will speak for themselves, which please return after perusal. Although I shall try to repay this loan, but your mother should better consider and treat it as a bad loan. From Bombay it is my present intention to go to Sree Hazur Saheb (Nander) before returning to Dehra, Dun. I am going alone.
Sd. Bipudaman Singh.
22. The printed letter at p. 181 is wanting in two notes of exclamation to be found in the original after the words 'a bad loan'. By this letter the plaintiff inquired of his daughter, the appellant 1, to whom the letter was addressed, how her mother was doing and expressed the hope that she was better and free from fever. Then the plaintiff goes on to request the defendant 1, to ask her mother if the latter could conveniently lend the plaintiff some money to enable him to go to Bombay. To indicate the urgency for the money two telegrams were enclosed, and then the plaintiff, in a tone of joke, tells the daughter that she might tell the mother that, although the money was going to be a loan, it was more likely than, not to be a bad loan. On the basis of this letter it has been argued by the learned Counsel for the appellants that the plaintiff was in sheer need of money and yet he never claimed the Promissory Notes held by the Bank for the Senior Maharani. Several remarks may be made on this argument. The first point is that the letter was never put to the plaintiff, although he was under cross-examination for a long time, and he was never asked to explain why he asked for a. 'loan', although he had Promissory Notes of the value of two and a half lacs of rupees at his disposal. As laid down by their Lordships of the Privy Council in Bal Gangadhar Til alt v. Shrinivas Pandit A.I.R. 1915 P.C. 7 and in Jagrani Kunwar v. Durga Prasad (1914) 36 All. 93, if a party wants to rely on a previous statement of a person who has gone into the witness box, in order to contradict him, it is the duty of such person to put that letter to the party or the witness and to give him an opportunity to explain it. The case reported in Bal Ganyadhar Tilak v. Shrinivas Pandit (1914) 36 All. 93, was where a party was under examination and the case reported in Jagrani Kunwar v. Durga Prasad (1914) 36 All. 93, was one where a witness was under cross-examination. The letter not having been put to the plaintiff, it cannot be expected that the counsel for him in the Court should be able to give the true explanation, 'Kurther it appears to us that the Jotter does not imply that the necessity of the plaintiIT was so large as to require him of sell the two or any of the two Promissory Notes, one being for 2 lacs of rupees and the other for fifty thousand rupees. The plaintiff wanted ' some money' to enable'ihim to go to Bombay. One fiisit class fare could not cost more than iiii. 100 and he was proposing, as he states in the letter, to travel alone. If the plaintiff wanted at the time, say, a thousand rupees, that surely would not necessitate the sale of either of the two Promissory Notes. He could very well ask his wife, who was having the benefit of the interest of the Promissory Notes amounting to over a thousand rupees a month, to come to his aid with a small loan or gift. The argument, therefore, that the plaintiff, although in need, never looked upon the money in question as his own, will not hold good.
23. Before proceeding further, we have to record certain incidents, which are greatly to be deplored. It appears that the plaintiff' contemplated the marriage of his daughter, the appellant 1, to the gentleman who eventually did become her husband, the Saja Saheb of Kalsia, but had some doubts as to his suitability on account of his bad health: see letter p. 139, which is a letter addressed by the plaintiff as 'Bipudaman Singh' to his wife, Senior Maharani. Later on the plaintiff, who seems to have been very much afraid of the machinations or supposed machinations of his rival, the Maharajah of Patiala, feared that the Baja of Kalsia might be under the influence of the Maharajah of Patiala. Thus, on account of Eaja Kalsia's bad health and the supposed influence of the Maharajah of Patiala over him, the plaintiff declined to regard Raja of Kalsia as a suitable son-in-law. It appears that JagdishKunwar'made up her mind to celebrate this marriage, and she did celebrate it in spite of the plaintiff's opposition. This must have brought about some amount of estrangement between the husband and wife, but we have not got any documentary evidence on the record to show how far that estrangement did in fact go. It further appears that after the marriage, the Eaja of Kalsia and the appellant 1 wanted to approach the plaintiff with a view to reconciliation, but they made the fatal mistake of themselves not writing to him but asking the Private Secretary to the Eaja of Kalsia to write instead. This greatly hurt the plaintiff and the letter at page 151 of our record was the reply given by the plaintiff. The plaintiff did not reply to the letter himself, but apparently some officer of his was directed to sond a reply. The reply tells the Eaja of Kalsia that it was a very dishonourable act to have married the lady without her father's consent, especially when he (Raja Kalsia) knew that the father apprehended
great danger to the life and honour of his child as a result of this alliance through the instrumentality of his greatest and unscrupulous enemy who has ruined him by machination, corruption, treachery and conspiracy.
24. The letter is dated 30th of March 1925 and the enemy referred to was the Maharajah of Patiala. This letter no doubt indicates an estrangement between the father and the son-in-law, but there is evidence that the father's affection for the child did not entirely dry up. It appears that the marriage of Bani Amrit Kuar with Baja Kalsia was celebrated some time about February 1925, and shortly after that the Eaja of Kalsia and his bride went to Europe on a long tour. While Bani Amrit Kuar was in Europe, the letter, to be found at pp. 163 and 164 of the hook, was addressed by the plaintiff to her. This letter indicates the existence of an affectionate heart of a father towards his only daughter and an anxiety that the daughter's husband should possess a good health and avoid all danger to it. In spite of a slight stricture in the letter on the son-in-law on account of his want of tact in allowing his Pri. vate Secretary to address the plaintiff the plaintiff tells his daughter how it is the duty of a woman according to the view of saints to serve her husband. The letter closes with 'a word about ourselves,' thaf is to say, about the plaintiff and his wives. The plaintiff stated that he feared that he might be murdered any day by an agent of 'Bhoopa' (the Maharajah of Patiala) and that the Political Department of the Government of India wero behaving disgracefully towards him and his family. The letter is dated the 20th of February 1926 and is a clear indication that the father regarded the daughter in no other light than a natural lather would regard an affectionate daughter.
25. The Raja of Kalsia and the appellant No. 1, returned to India at the end of 192(5. The appellant No. 1 went to live with her mother at Dehra Dun where the latter at p. 181, which we have already seen, was addressed. Every thing seemed to go on well. Then we suddenly find that shortly before Maharani Jagdish Kunwar's death it was discovered that the protracted illness of the Maharani was dua to administration of a slow poison, which might be arsenic or some mercurial preparation. Bani Amrit Kuar was living with her mother; she became auspicious of the servants about her mother. She dismissed the whole lot and appointed fresh, servants. She addressed letters to the political officers explaining the situation. The plaintiff being apprised of his wife's illness grew most anxious. Ha wanted to see his wife but was informed in reply to his query that he regarded him, the plaintiff her husband, as the person who had employed agent to poison her, that she refused to eee him, that she told people about her that nor husband should not even see her dead body. The plaintiff could snatch but a short interview with his wife, but even that he could not get without the presence of a medical woman at the place.
26. In the plaint of the suit out of which this appeal, has arisen the plaintiff openly accused the daughter and her maternal grandfather as being among the people who brought about the death of his wife. In the letters that were addressed by the appellant No. 1 to political officers informing them that her mother was ill there is no clear indication that Amrit Kuar suspected the father as the cause of her mother's death. In her deposition however, she says that her mother suspected and accused the father as the agent of her misfortune. A good deal of argument at the bar has ranged about the circumstances, but fortunately for us we are not called upon to pronounce any opinion as to the cause of the Maharani Jagdish Kunwar's death and, if it was the result of poisoning, whose were the brains behind the administration of the poison. Possibly, neither the husband nor the daughter is responsible.
27. Suffice it to say for our purpose, that up to January 1927 there was no estrangement between the husband and wife the Senior Maharani, as in that case it is impossible to believe that the plaintiff could have written the letter printed at p. 181 asking her to make him a loan and to consider it as a bad loan. The story of the serious estrangement between the father and the daughter and of the supposed estrangement between the husband and the wife is not material for the purposes of this case, except very distantly.
28. The distant relevancy arises in this way. The Junior Maharani, Sarojini Devi, was examined on behalf of the plaintiff. We shall deal with her evidence later on. Exception has been taken to her statement on the ground that she stated that she had paid a visit to the Senior Maharani and that, on that occasion, the latter had told the former that Eani Amrit Kuar was pressing her to transfer the securities of the Maharajah in her favour and that she Jagdish Kanwar was rather anxious on that account. It has been argued that whatever might be said as to the rest of the evidence of the Junior Maharani, this part of the evidence was palpably false, and, therefore, the whole testimony of the Junior Maharani should be thrown away. We shall mention what impression the statement of the Junior Maharani, has made on our minds, at the suitable opportunity, but in the circumstances that have been narrated above, namely the estrangement in the family, do not afford any reason to suppose that the statement of the Junior Maharani is false. If it is false, it is deliberately false, and there is no explanation of it. It is argued that with the estrangement in the family described above it was impossible that the Junior Maharani should visit the Senior Maharani and that the Senior Maharani should have told the Junior Maharani that Amrit Kuar was pressing her mother to transfer the securities to her.
29. There are circumstances which do indicate that Maharani Sarojini Devi is a thoroughly trustworthy witness, although this part of her statement, at first sight, might jar on the ear.
30. We have already mentioned that Maharani Jagdish Kunwar made a will in 1915. She made another will in 1924. In this will she did not mention that the Promissory Notes were her property nor did she make any attempt to explain how the Promissory Notes became her property : see p. 149. She was leaving all the property to her daughter, and naturally, if the Promissory Notes were her own property and if there was no doubt about her title, she would not take any care whatsoever to describe how the title accrued to her. The language of the will of 1924 is the language of a natural will of an honest person with nothing sinister about it. On the other hand, in the ease of the will of 1927, careful attempt has been made to describe how a title accrued to the testator. Eani Amrit Kuar's case was that her mother had already endorsed the Promissory Notes in her favour some months earlier, and that she claimed title not under the will but under the said endorsement. This is undoubtedly a strange situation. Amrit Kuar was living with her mother when the will was executed. Her grandfather was living on the same premises. If there was an endorsement of the Promissory Notes in favour of the daughter by the mother herself, and if the will was executed by the mother while in full possession of a sound disposing mind, surely the mother would know what had happened to the Promissory Notes.
31. Now there is no endorsement of the notes in favour of Eani Amrit Kuar. All that we have got is a note purporting to have been made by the Bank for its own purposes on the Promissory Notea to the effect that, they were held by the Bank on account of Jagdish Kunwar and Amrit Kuar 'E and S,' that is, either or survivor.' We do not know who made that note on the Promissory Notes. No attempt has been made to call an official of the Bank on the point. The letter, by which instruction was given or supposed to have been given by Maharani Jagdish Kunwar for the transfer of the Promissory Notes to the joint account was not summoned. The Bank account of Maharani Jagdish Kunwar shows that the interest due on the Promissory Notes during her lifetime had all been collected on her account.
32. If, then there was no endorsement in favour of Eani Amrit Kuar, who was it that wrote to the Bank on behalf of Jagdish Kunwar that the Promissory Notes were to be held jointly by the mother and the daughter during their joint life and then by the survivor. The statement in the will of 1927 as to how a consideration passed for the transfer, indicates an anxiety in the person, who made the fabrication, to benefit Eani Amrit Kuar and nobody else. Can it be that Eani Amrit Kuar was unaware of the statement proposed to be made in the will when the draft was prepared and then made in the will? AH these circumstances do go to show that, in all probability, there was an anxiety on the part of Eani Amrit Kuar that the Promissory Notes may pass to her.
33. An anxiety like this may have been natural to her in view of the fact that the bonds stood in the name of her mother and she was the only child and heir of the mother. The father had been impoverished and had nothing to give his daughter, although she was the only daughter of the once great father.
34. We are, therefore, of opinion that we cannot discredit the statement of Maharani Sarojini Devi, simply because she has stated (what may be really true) that Maharani Jagdish Kunwar was being troubled in her mind owing to an insistence on the part of her daughter for the transfer of the Promissory Notes in her favour.
35. Now we proceed to examine the direct evidence on the record. On behalf of the appellants, the two appellants, one Asa Singh, one Bakhtawar Singh andGurdayal Singh Dulat have been examined, besides other witnesses of minor importance. The evidence of appellant No. 1, Eani Amrit Kuar, and the evidence of Bakhtawar Singh and Asa Singh relate to the actual transfer.
36. We shall dispose of Bakhtawar Singh and Asa Singh first. It is impossible to believe that at the time when the notes where endorsed in favour of the two Banis, either Bakhtawar Singh or Asa Singh could have been present. None of these are men whose testimony can be accepted. It is impossible to believe that, from the nature of their connection with the Nabha Eoyal Family they would be the persons likely to have been present. Bakhtwar Singh is distantly related to appellant No. 2. The plaintiff always, disliked his father-in-law, appellant No. 2, and this fact is admitted by Eani Amrit Kuar herself. She says at p. 111:
The Maharajah's feelings towards Sardar Gur-dial Singh Mann were not good even before 1923. Sardar Bakhtawar Singh took part in the marriage arrangements. His Highness had the same feelings towards Sardar Bakhtawar Singh as towards Sardar Gurdial Singh.
37. The story told on behalf of the appellants is that Maharani Jagdish Kunwar had invited Bakhtawar Singh to tea and Bakhtawar Singh had come within the house for that purpose. While the elder Maharani was at tea, the Maharaja arrived and said something to her and this enabled Bakhtawar Singh to know the nature of the transaction. The learned Judge of the Court below refused to believe Bakhtawar Singh, and we have no hesitation in disbelieving him. We decline to accept the story of Bakhtawar Singh that he had been admitted into the privacy of the house while the plaintiff was yet the master of it and that he arrived by sheer accident; at the right time to enable him to appear as a witness in the case. Asa Singh is an ex-servant of the plaintiff. He was accused by the plaintiff of running away with a sum of Rs. 4,000. It is undoubtedly true that after running away from plaintiff's house Asa Singh found shelter in the service of the Maharaja of Patiala and is still in his service.
38. As regards the statement of Rani Amrit Kuar, we have either to accept her evidence as against that of her father and step-mother or to reject it in the face of the statements of the plaintiff and Maharani Barojini Devi. The learned Judge of the Court below has not been able to accept the story of Eani Amrit Kuar, and we cannot say that the learned Judge was not right. The defendants examined Sarrlar Bahadur Gurdayal Singh Dulat who is now one of the members' of the Council of Bogency at Nabha and was before that the Assistant Administrator of the State, when the Government of India took over the State. He was one of the oldest officers of the State. He stated clearly that the transactions relating to the Promissory Notes were benami in their nature. If we may accept the witness as a truthful one, his evidence entirely demolishes the defendants' case that the endorsements were made for the purpose of making gifts to the two Maharanis. We consider that the witness is one of truth. It is no doubt the case that he was examined against his will. He states that he did not want to appear in the case as a witness as it was a ease of the father against a daughter. But the fact remains that he is an independent witness who is likely to have correct information. The mere fact that he was cited on behalf of the defendants and his evidence went entirely in support of the plaintiff's case does not entitle us to reject his evidence as that of a witness who had been 'won over' by the plaintiff. There is no presumption of law that a witness called by a party must be treated as his partisan, and if he gives evidence which does not support the party calling must be treated as dishonest. In this case the defendants did not seek any information on the question of the character of the endorsements. He was examined on another point. As we have said, in our opinion the Sardar Bahadur has told the truth and the defendants' case stands condemned by the testimony of their own witness.
39. As against all this evidence we have got the statement of the plaintiff himself. If the plaintiff really meant to give the Promissory Notes to his Senior Maharani, he knew that the Notes would be eventually the property of his own daughter, Rani Amrit Kuar. If then Maharani Jag-dish Kunwar bequeathed these Notes to Eani Amrit Kuar, that fact would not give any reason to the plaintiff for filing a false suit and making an attempt through Court to recover the money. The suit, even if it be true, has its unsavoury aspect on account of its being by a father against a daughter. It is impossible to think of the plaintiff being so mean as to ask the daughter to return what he knew was likely to be her property eventually, for no other reason than a love of money. The evidence of the plaintiff is very long, but there is not any material matter in it which should dissuade us from accepting his testimony as correct.
40. It appears that on the death of Maharani Jagdish Kunwar, the plaintiff wrote to the Bank that he was the ownar of the notes; that the transfer to the Maharani was fictitious and that the Maharani had only a life interest. The plaintiff was asked to explain this statement as to life interest; but he insisted on the original letter being shown to him before he could be called upon to explain his own statement. Much comment has been made on this attitude of the plaintiff, but we do not think that the plaintiff was wrong. What was shown to him was not even a certified copy but a portion of the printed paper-book of the probate case. A witness in the box has a right to see his previous statement said to have been made by himself in his own handwriting before he can be called upon to explain it. The fact, that for just four years (February 1923 to February 1927)Maharani Jagdish Kunwar drew the interest, might give sufficienti justification for the plaintiff to say, by way of explanation as to why the Maharani had drawn the interest if the Promissory Notes belonged to him, that he had allowed the Maharani a life interest. But the fact remains that the plaintiff did say that the Promissory Notes were his and the transfer was fictitious.
41. The statement of Maharani Sarojini Devi has struck us as carrying with it a ring of high sense of honesty and truth-fulnosa. No adverse comment has been math) against her statement, except the one we have already dealt with. She has stated that the endorsements in her favour wore made at one and the same time with those in favour of Maharani Jagdish Kunwar; that she did not understand this business and it was explained to her by the older Maharani, who loved her co-wife aa a younger sister; that some time about 1926 she re-endorsed the Promissory Notes in favour of the Maharajah, that a promissory note for two lacs of rupees executed by a borrower in favour of herself is really the property of the Maharajah, she being only a benamidar Cor him, and that two houses purchased in Dehra Dun with title-deeds standing in hor favour are really the property of hor husband, shebeing only a benamidar. All these statements are against her own interest, and apart from other considerations, this fiiob alone would induce us to accept her statement as true. In the case of the promissory note aforesaid, executed by one Lrictunan Das the suggestion was mado on hehulf of the appellants that the plaintiff having taken away the Government Promissory Notes gave her in lieu thereof, promissory note given by Luochman Das, Maharani Sarojini Devi has clearly shown that such a proposition is entirely unbelieveable. Lachman Das is a debtor; a recovery of money from whom is described by the Maharani as an attempt to draw blood from a stone. In the circumstance it is impossible to believe that there was a bargain between the plaintiff and Maharani Sarojini Devi that should take the promissory note of Lauhman Das and give him back the Government Promissory Notes of 2 1/2 lacs of rupoos carrying interest at the high rates of 6 and 6 1/2 per cent.
42. There are three other witnesses who swear that they were present at the transaction in question, namely Mr. Bhadra, Eaten Singh and Sardar Sapooran Singh. Even if the evidence of these three witnesses be expunged from the record, we-think enough would be left for the plaintiff to establish that the transaction was abenamione and no gift was contemplated in favour of either of the Maharanis. As regards Mr. Bhadra, he is a confidential servant of the plaintiff. He has been, in the service of the State for 31 years. He was the private secretary of the plaintiff. His presence on tha occasion need not cause us any surprise. His evidence has been adversely commented upon, because he is supposed to have made some contradictory statements as regards his own presence in Court on the date 'of issue.' The discrepancy is not clear, but, even if there be a discrepancy, we do not consider it to be of any importance in view of the fact that he was talking of matter which had happened a year earlier. It is sufficient to say that, if any third party likely to have been present besides the Maharajah and his two wives, Mr. Bhadra would be the man to be present.
43. Fateh Singh is again another old servant of the plaintiff and Sapooran Singh is his family priest. Rani Arnrit Kuar admits that on the date of the endorsement, Mr. Bhadra and Fatah Singh were on the premises as also Karam Kuar, another witness for tha plaintiff. The presence of Bhadra therefore is very probable. The othor witnesses are three family servants of the Ranis, We need not at. tach any particular importance to their statements which may or may not be true. We are cloarly of opinion that on the evidence on the record, tha banami character of the transfers in favour of Maharani Jagdish Kunwar is abundantly established. In thin view of our fin ling, the appeal must ha and is hereby dismissed with no ta. Tharn is a cross objection on behalf of the pluaiuff as to the Fixed Deposit with the Dehra Dun Bank, Nothing has been pointed out to us which would enable us fco say, that the amount of tha fixed deposit belongs 1 to the plaintiff and' not to tha late Mabanni. No doubt, over a thousand rupees a month had been received as interest for four years and this would amount to fifty thousand rupees odd. But Maharani Jagdish Kunwar had been allowed to enjoy the money and, if there were any saving, it cannot be said conclusively that the savings were there, because the Maharani had set apart the money for the use of the plaintiff and as money belonging to the plaintiff. In the circumstances, the cross.objection also fails and is hereby dismissed with costs.