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Almu Sah and anr. Vs. Kundan Sah and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1933All916; 147Ind.Cas.826
AppellantAlmu Sah and anr.
RespondentKundan Sah and ors.
Excerpt:
- interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute. - we may point out that according to the mitakshara law, bala sah, who had no issue and who held property which he had inherited from his ancestors was perfectly competent to make a will in respect of that property. 3. this clearly shows that the law relating to wills made by hindus residing in kumaun is exactly the same as that prevailing in these provinces (mitakshara law). when mr......the reversioners were not parties to the suit, but when the case was pending in the court of the learned district judge he added certain persons plaintiffs. one of them was not even present; his nephew happened to be in court and made a statement that he had full authority to represent his uncle and on that ground the uncle was also made a party. the defendants had pleaded that bala sah had made a will in 1926 in their favour. when the case came up before us we found that though the court below had made a reference to this will no evidence had been given in proof of it. on behalf of the plaintiffs it was urged before us that a custom obtained in kumaun, to which division the parties belong, under which bala sah was incompetent to make a will. by our order dated 21st february 1932 we.....
Judgment:

Rachhpal Singh, J.

1. Some of the plaintiffs-respondents instituted a suit in the trial Court against the defendants-appellants to obtain a declaration to the affect that a deed of gift executed by Mt. Bhaka, on 31st October 1927, in favour of the defendants in respect of the property in suit was not binding on them after her death. Mt. Bhaga died during the pendency of the case and subsequently, when the case was pending before the District Judge in appeal, a prayer was added for possession of the property in suit. The lower appellate Court found that the plaintiffs and the defendants were the nearest reversioners of one Bala Sah. All the reversioners were not parties to the suit, but when the case was pending in the Court of the learned District Judge he added certain persons plaintiffs. One of them was not even present; his nephew happened to be in Court and made a statement that he had full authority to represent his uncle and on that ground the uncle was also made a party. The defendants had pleaded that Bala Sah had made a will in 1926 in their favour. When the case came up before us we found that though the Court below had made a reference to this will no evidence had been given in proof of it. On behalf of the plaintiffs it was urged before us that a custom obtained in Kumaun, to which division the parties belong, under which Bala Sah was incompetent to make a will. By our order dated 21st February 1932 we remitted two issues for findings to the lower appellate Court. These were: (1) whether the document alleged to have executed by Bala Sah in April 1926 was in fact validly executed, and (2) whether in fact there is a custom prevalent in Kumaun, which deprives a Hindu without issue of the power to make a will of ancestral property. The learned District Judge has now submitted his findings on these two points. He has found that the will was validly executed by Bala Sah in favour of the defendants appellants and there was no custom under which a Hindu residing in Kumaun, who had no issue and who had ancestral property was incompetent to make a will relating to such property. The respondents have filed objections to these findings. We have heard the learned Counsel appearing in the case and are of opinion that the objections of the respondents have no force. Both the findings of the learned District Judge are of facts and they conclude the appeal. We may point out that according to the Mitakshara law, Bala Sah, who had no issue and who held property which he had inherited from his ancestors was perfectly competent to make a will in respect of that property. If a custom prevailed to the contrary under which he was incompetent to make a will, it was for the plaintiffs to establish that custom. As the issue on this point has been decided against them by the learned District Judge they have no case. During the arguments a reference was made to Mr. Panna Lal's book 'Kumaun Local Customs' and we therefore think it necessary to make a few observations about it. Dealing with the general customs among Hindus Mr. Panna Lal in Section 40 at p. 5 says that:

a man can dispose of by will only his self-acquired property and not his ancestral property.

2. As pointed out by the learned District Judge this statement of customary law in Kumaun would at first sight make it appear that by these words Mr. Panna Lal meant that there was some modification of Mitakshara law as regards wills by Hindus residing in Kumaun, but when we look at Section 297 of his book we find that such is not the case. In that section he says:

Under the Mitakshara law a man has no power to deal with ancestral property by will. Custom in Kumaun is in accordance with this law. It has been stated in the rule only to prevent any misunderstanding or doubt. The sons, it has been shown, have no share or right in the property in their father's life-time, and lest it should be argued from it that a father' power to bequeath was also unfettered it has been considered advisable to state the custom expressly.

3. This clearly shows that the law relating to wills made by Hindus residing in Kumaun is exactly the same as that prevailing in these provinces (Mitakshara Law). When Mr. Panana Lal in Section 40 says that a Hindu can dispose of by will only his self-acquired and not his ancestral property he is referring to the case of a Hindu father who is joint in estate with his sons and the joint family holds ancestral property. Accordingly to the customary law in Kumaun the sons have no share or right in the property in their father's lifetime. What Mr. Panna Lal means to say is that where a Hindu is holding ancestral property and he has sons, then he cannot make a will in respect of that joint ancestral property, Rule 40 in his book has no re-reference and is not applicable to the case of a Hindu holding ancestral property and who has no issue at all. So it is wrong to argue that Mr. Panna Lals book is an authority for the proposition that a Hindu holding ancestral property and who has no sons is incompetent to make a will in, res-respeet of such property in Kumaun. For these reasons we are of opinion that this appeal must succeed. We accordingly allow the appeal, set aside the decree passed by the Court below and dismiss the suit of the plaintiff with costs in all the Courts.


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