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Umrao Kunwar and anr. Vs. Badri - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in29Ind.Cas.302
AppellantUmrao Kunwar and anr.
RespondentBadri
Cases ReferredRam Bhajan Kumvar v. Gurcharan Kunwar
Excerpt:
hindu law - will executed by widow--reversioner's suit for declaration, whether maintainable. - - we think that the learned additional subordinate judge was right in refusing to grant the declaration sought by the plaintiff and gave good reason for his decision......a suit by a plaintiff claiming to be the next reversioner under the hindu law to the estate of one dewa. the said dewa died leaving a widow, umrao kunwar. this lady has executed a will bequeathing the property in her hands as widow of dewa to one tika ram, son of naidar, brother of the said dewa. in the will there is a recital to the effect that the bequest is made in accordance with oral directions given by dewa. the plaintiff sought a declaration that the will in question is void and ineffectual as against his interest and that tika ram, who was impleaded as defendant no. 2, will acquire no rights under the said will. the court of first instance dismissed the suit upon a preliminary point, holding that there had been no alienation by umrao kunwar of the property in her hands and that.....
Judgment:

1. This was a suit by a plaintiff claiming to be the next reversioner under the Hindu Law to the estate of one Dewa. The said Dewa died leaving a widow, Umrao Kunwar. This lady has executed a Will bequeathing the property in her hands as widow of Dewa to one Tika Ram, son of Naidar, brother of the said Dewa. In the Will there is a recital to the effect that the bequest is made in accordance with oral directions given by Dewa. The plaintiff sought a declaration that the Will in question is void and ineffectual as against his interest and that Tika Ram, who was impleaded as defendant No. 2, will acquire no rights under the said Will. The Court of first instance dismissed the suit upon a preliminary point, holding that there had been no alienation by Umrao Kunwar of the property in her hands and that under the circumstances the mere execution of a Will would not afford a sufficient reason for granting a declaratory decree. It supported itself by a quotation from Mulla's Principles of Hindu Law. The learned District Judge on appeal has reversed the finding on the preliminary point and remanded the case for trial on the merits. He bases his decision upon the reported case of Jaipal Kunwar v. Indar Bahadur Singh 26 A. 238 : 31 I.A. 67 : 8 C.W.N. 465 : 6 Bom. L.R. 495 : 14 M.L.J. 1490. It is obvious that in that case their Lordships of the Privy Council maintained1 the decision of the Courts in India with considerable reluctance and carefully guarded theniselves against being understood to hold that the execution of a Will, under such circumstances as the present, would afford a cause of action for a declaratory suit on the part of the nearest reversioner. It is certainly not the practice of this Court to encourage such suits, vide Ram Bhajan Kumvar v. Gurcharan Kunwar 1 A.L.J. 468 : A.W.N. (1904) 150 : 27 A. 14. The learned District Judge, moreover, while purporting to follow the Privy Council ruling quoted by him, has really departed from the spirit of that ruling by interfering with the decision of the Court of first instance. We think that the learned Additional Subordinate Judge was right in refusing to grant the declaration sought by the plaintiff and gave good reason for his decision. We set aside the order of the Court below and restore the decree of the Court of first instance dismissing the suit. The defendants-appellants will get their costs in this Court and in the lower Appellate Court.


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