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(Diwan) Pahar Singh and ors. Vs. Shamsher Jang Bijai Bahadur Singh and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1931All695
Appellant(Diwan) Pahar Singh and ors.
RespondentShamsher Jang Bijai Bahadur Singh and ors.
Cases ReferredNekram Singh v. Sriniwas
.....failed to establish consent or waiver on the part of the nearest reversioners or any other fact to show that they are precluded from suing. he has thus failed to establish the ground which would give him, a remote reversioner that ho is, a right to bring the suit, i find against him. if therefore rajdhar failed to adduce sufficient evidence to satisfy the court that there had been an adoption, we do not think that daulat and satiuley should be prejudiced by the result of that litigation......are a large number of defendants who are transferees under various documents. it appears that bhola nath was admittedly the full owner of these properties about 1906 or 1907. he died on 7th march 1907, leaving a widow, mt. sughar dulaiya, and a daughter, mt. raja beti, who was married to girdhari lal, defendant 4. raja beti had a son, harakh chand, who died after bhola nath while he was a child of about three years of age. admittedly before his death bhola nath signed a document which is called a deed of adoption, in which there was reference to harakh chand being the owner of his property along with his wife. on the death of bhola nath the name of harakh chand was entered against the zamindari properties in the revenue papers, and after his death the name of mt. sughar dulaiya was.....

Sulaiman, J.

1. This is a defendants appeal arising out of a suit for recovery of possession of certain immovable properties. There are a large number of defendants who are transferees under various documents. It appears that Bhola Nath was admittedly the full owner of these properties about 1906 or 1907. He died on 7th March 1907, leaving a widow, Mt. Sughar Dulaiya, and a daughter, Mt. Raja Beti, who was married to Girdhari Lal, defendant 4. Raja Beti had a son, Harakh Chand, who died after Bhola Nath while he was a child of about three years of age. Admittedly before his death Bhola Nath signed a document which is called a deed of adoption, in which there was reference to Harakh Chand being the owner of his property along with his wife. On the death of Bhola Nath the name of Harakh Chand was entered against the zamindari properties in the revenue papers, and after his death the name of Mt. Sughar Dulaiya was entered. We may note that Raja Beti had died in 1908 before the death of Harakh Chand. Mt. Sughar Dulaiya died on 24th October 1914, and the present plaintiff the Raja of Katera Estate, acquired the interest in this estate under a sale deed, dated 26th April 1924, executed by Daulat and Satauley.

2. The plaintiff's case was that the deceased, Bhola Nath, had adopted his-daughter's son, Harakh Chand, who became the last male owner, and that on his death his adoptive mother, Mt. Sughar Dulaiya, acquired a limited Hindu widow's estate in the property which devolved on Daulat and Satauley when the succession opened to them on her death. The plaintiff asserted that the various defendants, who were in possession of these properties, were transferees either from Mt. Sughar Dulaiya or from Girdhari Lal, who had no rights himself, and these transfers being without legal necessity were invalid and were not binding on the plaintiff.

3. The suit was resisted by the various defendants on the following grounds : Firstly, the fact of the adoption was disputed, secondly, it was pleaded that even if there was any adoption, it was legally invalid; thirdly, that the present claim was barred by the principle of res judicata on account of the decision in Suit No. 599 of 1913, fourthly, that under the deed executed by Bhola Nath an absolute estate was acquired by Harakh Chand, which went to his natural family after his death and did not devolve on the plaintiff's vendors and, fifthly, that even if Bhola Nath died intestate, his widow succeeded as absolute owner to the entire estate and could dispose of it even without any legal necessity. The learned Subordinate Judge has overruled these pleas and has decreed the claim. The defendants accordingly have appealed to this Court and challenge the findings of the learned Subordinate Judge.

4. It will be convenient to take up those pleas first which can be disposed of briefly. The fourth point mentioned above depends on an interpretation of the deed executed by Bhola Nath, which is printed on p. 79. This document, as translated officially, shows that Bhola Nath admitted that he had taken his daughter's son in adoption and that he was the owner of his moveable and immovable properties and so was his wife. It is the present tense which is used throughout this document and there is no passage which would justify an inference that a bequest was being made in favour of his daughter's son which was to take effect after the death of Bhola Nath. Beading the document as a whole we agree with the Court below that it is an acknowledgment of the adoption by Bhola Nath and not a will by Bhola Nath in favour of Harakh Chand conferring upon the latter an absolute estate after the death of Bhola Nath. It is therefore quite clear that this document is wholly inoperative as a testamentary bequest and no title can be based upon it.

5. The second point was that the adoption, even if it took place, was illegal. It is conceded by the learned advocate for the appellants that among Jains adoption is not associated with any particular religious sanctity, but it is a purely secular matter. It follows that there can be no prohibition against the adoption of a daughter's son. As a matter of fact, there was no plea taken in the written statements that any such adoption would be legally invalid. In the case of Sheo Singh Rai v. Dakho [1876] 1 All. 688 their Lordships of the Privy Council held that a Jain may adopt a daughter's son who on the adoption takes the place of a son begotten. It was not suggested that there was any legal bar to such an adoption.

6. The next point urged is a plea of res judicata. So far as this plea is based on an alleged compromise decree entered into in a suit brought by Rajdhar against the widow and some transferees, the main difficulty in the way of the defendants, is that the compromise decree is not before us and we do not know what were the terms agreed upon. It is therefore difficult to see how it com operate as an estoppel by judgment. It is however contended that the judgment in Suit No. 599 of 1913, between Rajdhar on the one hand and Mt. Sughar Dulaiya and some of the defendants as well as Girdhari Lal on the other, operates as res judicata between the representatives of Daulat and Satauley. That suit was brought by Rajdhar who was not the next reversioner at the time. There were Daulat, Satauley and a son of Satauley who were nearer reversioners and who were not impleaded in the array of the defendants. Daulat and Satauley were however made pro forma defendants. The plaintiff, Rajdhar, alleged that the nearer reversioners had colluded with the widow and had accordingly not been joined in the suit. He challenged certain alienations made by the widow,, on the ground that they were without any legal necessity. So far as the plaintiff was concerned he admitted the adoption of Harakh Chand and put forward the case that Mt. Sughar Dulaiya was his adoptive mother. Mt. Sughar Dulaiya, as well as her transferees, all pleaded that there was a valid adoption of Harakh Chand. They resisted the claim on the ground that she had acquired absolute title to the property and could make the transfers without any legal necessity. The defendants, Daulat and Satauley, pleaded that they were the next reversioners and they denied that they were in collusion with the widow. They also did not deny the adoption of Harakh Chand, The only person who denied the plaintiff's allegation that there had been an adoption was Girdhari, who was defendant 7 in that suit. These facts are quite clear from the summary of the pleadings given in the judgment on p. 98.

7. It may be noted that no relief had been claimed by the plaintiff against Girdhari Lal, who was stated to have been impleaded on the ground that, though as a son-in-law he had no right to the property of Bhola Nath; he had nevertheless instituted a suit and did claim the property. It is also quite clear that Girdhari Lal was neither claiming as a member of the reversionary body, nor as a representative of the Hindu widow in whom the estate was vested for the time being. He was setting up an independent title of his own adversely both as against the reversioners and the widow. The defendants, who rely upon this judgment, have not cared to produce the pleadings of that suit, nor have they even produced a copy of the deposition of Daulat Ram to which there is a reference in the body of the judgment and on which admission they wish to rely. There is a recital in the judgment that Daulat Ram stated that he did not want Bhola Nath's property and that he had no objection to the plaintiff's suit. It is doubtful how far a recital in the judgment of this admission of Daulat Ram can by itself be evidence of his admission. It is however clear that there was no such admission on the part of Satauley. Daulat and Satauley appear to have taken no further steps in the litigation, and the contest was mainly between Rajdhar, plaintiff, and Girdhari Lal and the other defendants. The learned Subordinate Judge recorded a finding that no adoption was proved and he also was of the opinion that a proper interpretation of the deed of adoption referred to by us above amounted to a will in favour of Harakh Chand. He however held that no collusion between the widow and the nearest reversioners had been established, and that therefore the plaintiff had no locus standi to sue in the presence of the other nearer reversioners. His actual finding was in the following terms:

I find therefore that the plaintiff has failed to prove the alleged collusion and farther that he has utterly failed to establish consent or waiver on the part of the nearest reversioners or any other fact to show that they are precluded from suing. He has thus failed to establish the ground which would give him, a remote reversioner that ho is, a right to bring the suit, I find against him.

8. He further held that the relief for a declaration was merely discretionary, and having regard to the remoteness of the plaintiff's relationship, he did not think it would be quite proper to grant him the relief, oven assuming that he could maintain his suit, as there were no less than three immediate reversioners one after the other between him and the estate. He also found that the custom to inherit the estate absolutely was not established. He accordingly dismissed the suit.

9. As the admission of Daulat is not before us it is not possible to say whether his admission that he had no objection to the suit was in any way limited. The contest in that litigation was not between the reversioners, on the one hand, and the widow representing the estate, on the other, so far as the question of adoption was concerned. As a matter of fact, both these sets of parties were admitting both the validity and the factum of adoption. The adoption was not admitted by Girdhari Lal against whom no specific relief had been claimed and whose title was not admitted, and who had been impleaded merely because he had instituted a rival suit. If therefore Rajdhar failed to adduce sufficient evidence to satisfy the Court that there had been an adoption, we do not think that Daulat and Satiuley should be prejudiced by the result of that litigation. So far as the claim against Girdhari Lal was concerned, Daulat and Satauley cannot be said to have been represented by Rajdhar. On the date of the suit there was apparently no alienation in favour of Girdhari Lal at all, and the main object of the suit was to avoid the transfers which had taken place in favour of the other defendants. In these circumstances, although in one sense there was something in common between Rajdhar and Daulat and Satauley, we cannot hold that the dismissal of the suit brought by Rajdhar should absolutely prejudice Daulat and Satauley, who were arrayed on the side of the defendants and who could not very conveniently appeal from the dismissal, particularly when they were denying that there was any collusion between them and the widow. We therefore agree with the Court below that the judgment does not operate as res judicata. (Here the judgment discussed evidence on the question of adoption and proceeded as follows): The Subordinate Judge, who heard the entire oral evidence produced by both the parties, after considering it along with the documentary and circumstantial evidence, came to the conclusion that Bhola Nath had adopted Harakh Chand. We accept his finding and agree with his conclusion on this point.

10. On our finding that Harakh Chand was the adopted son it would follow that Mt. Sughar Dulaiya succeeded to the estate as his adoptive mother. There is absolutely no evidence on the record and no reported decision by which any custom has been established under which a mother acquires absolute estate in the property left by her son. It therefore necessarily follows that Mt. Sughar Dulaiya only acquired a Hindu widow's limited estate, which came to an end on her death, and in the absence of any proof of legal necessity for the transfers, the estate passed to the next reversioners.

11. As however the appeal is of a high valuation and there is a question of law, namely, that of res judicata, involved in it, we think it necessary to record a finding on the question of custom also. All the properties were acquired by Bhola Nath during his lifetime. Exs. B.K are the title deeds. Those printed on pp. 55, 57, 61, 65 and 69 show that part, if not the whole, of the consideration came out of the amount due under account. The evidence falls short of showing exactly up to what period those accounts had extended. But not only the plaintiff's witnesses, but even two of the witnesses for the defendants admit that Bhola Nath's father, Maluke was carrying on business which after his death was developed by Bhola Nath. The plaintiff's witnesses are as follows: Basore, who stated that Maluke did money-lending business, and Bhola Nath and his father were joint till the death of Maluke (p. 19); Bhola Nath, who stated that Maluke carried on money-lending business and obtained a decree against him and later Bhola Nath increased the business very much; and Haiku, who, also stated that he knew Maluke who carried on money-lending business (p. 24). The witnesses for the defendants who have made similar admissions, are Udaijit, who said that Maluke did money-lending business. The witness had seen his Bahi, and he might have been carrying on money-lending business to the extent of Rs. 4,000 or Rs. 6,000 (p. 27), and Girdhari Lal, who said that Bhola Nath's father did ghee business and sold salt, etc. and also did money-lending business, but on a very small scale, and Bhola Nath increased the whole business very much (p. 30). The decree printed at p. 43 shows that a suit was instituted jointly by Maluke and Bhola Nath, which resulted in a decree for a small amount.

12. The sale deed at p. 41 was taken jointly in the names of Maluke and Bhola Nath and so was the band on p. 47. The receipt on p. 53 shows the same thing. All this evidence goes to show that there was business, including money-lending, which was carried on by Maluke alone and then jointly with Bhola Nath which Bhola Nath later on developed considerably. There is no suggestion in the evidence that Bhola Nath had any other independent source of income. The plain-till has thus succeeded in establishing an ancestral nucleus from which Bhola Nath might have acquired the various properties. If Bhola Nath had a son alive, he would have no absolute power of disposal over such property when the nucleus was established, unless he showed that it was his separate and self-acquired property. It would therefore follow that even if Mt. Sughar Dulaiya succeeded to the estate of Bhola Nath as his widow, and not as the adoptive mother of Harakh Chand, she would not acquire absolute estate in the properties acquired from the income of the business which grew out of the ancestral nucleus unless a special custom to that effect were established by the evidence.

13. The oral evidence produced by the defendants to prove such a custom is by no means weighty. It consists of the statement of Girdhari Lal (p. 25) who in cross-examination was unable to answer the question how he knew that a Jain widow gets an absolute right in her husband's property, and of the statement of Udaijit (p. 27), who in cross-examination had to admit that he could not give any reason for his saying that a Jain widow is entitled to deal with her husband's estate as full owner. The plaintiff also relied on a judgment dated 19th September 1925 (p. 119), in which the Subordinate Judge of Jhansi had found that there was sufficient evidence to establish the right of a Jain widow whose husband lived separate from the other members of his family, to make a gift of her husband's property for religious and charitable purposes, and that accordingly she had a right to make the will. The learned Subordinate Judge relied on a Calcutta case in preference to a judgment of the Allahabad High Court to which he was subordinate, on the sole ground that the Calcutta ruling was of a later date. It is therefore obvious that his judgment is not of very great value. As against this one might say that there is the judgment in the suit instituted by Raj Dhar, in which the Subordinate Judge relying on the Allahabad case found that the custom was not established by the evidence. Although the finding cannot operate as res judicata, it is of more value because it was arrived at in a suit inter partes.

14. There is however evidence furnished by various reported cases in which custom entitling a Jain widow to succeed to the self-acquired property of her deceased husband has been established. We may refer to the case of Sheo Singh Rai v. Dakhu and the case of Shambhu Nath v. Gayan Chand [1894] 16 All. 379. The custom found to exist in the case of Harnath Prasad v. Mandil Dass [1990] 27 Cal. 379 did not relate to this province. The judgment was based on the ground that

there is in the evidence no reason for drawing any distinction between ancestral and self-acquired property, and we see no ground for such distinction (p. 393).

15. It is noteworthy that in the case of Sheo Singh Rai (1) their Lordships of the Privy Council approved of the findings of the High Court which was careful to hold that

she took an absolute interest at least in the self-acquired property of her husband, and as we have said, it is not necessary for us to go further in this suit, for the property in suit was purchased by the widow out of the self-acquired property of her husband (p. 704).

16. A distinction was thus at least recognized.

17. It seems to us that, as remarked by their Lordships of the Privy Council in Chotay Lall v. Chotay [1879] 4 Cal. 744, in the absence of proof of special custom varying the ordinary Hindu law of inheritance, that law is to be applied to Jains. This principle has of course been followed by the High Court in the case of Nekram Singh v. Sriniwas : AIR1926All586 .

18. In order to succeed, the defendants must establish a custom that a Jain widow acquires an absolute right in properties left by her husband which were acquired from the income of a business which had grown out of an ancestral nucleus. There is absolutely no evidence to prove the custom to this extent and there is absolutely no instance given. The reported judicial decisions only go to the length of holding this custom proved so far as the self-acquired property is concerned, but do not go further. In the absence of any evidence we must therefore hold that such a custom has not been established. When there is no proof that Bhola Nath had any independent source of income other than his ancestral business, the presumption of law is that the property acquired by him was out of the ancsetral nucleus. Although the property was acquired by him during his lifetime, it would not strictly speaking have been his self-acquired property if there were a contest between him and any born son. As against his son he would not be able to claim absolute power of disposal. We therefore think that his widow cannot claim any such right. We accept the finding of the Court below on this issue also and hold that Mt. Sughar Dulaiya had only a life-interest in the property and was not the absolute owner of the estate, even if it could be held that there was no valid adoption. This disposes of all the points raised before us in appeal. We accordingly dismiss it with costs.

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