Skip to content


Sohan Lal and ors. Vs. Mt. Bhagwati and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1936All205
AppellantSohan Lal and ors.
RespondentMt. Bhagwati and ors.
Cases ReferredSardar Singh v. Kunji Behari Lal
Excerpt:
- - you will remain full owner as i am you may make charities to the good of my soul and look after the child. in case of this description it is unsafe to rely on evidence of this nature unless there is some corroborative evidence. for these reasons we are of opinion that the defendants have failed to establish that an oral will had been made by go-bind ram in favour of mt. 51. 11. he like others recites what had been given to him as a result of the partition made by ballabh das in his life-time. 13. if the plaintiff had come forward to lay a claim to the items given to these female relations, it is clear that his claim would be liable to fail. kausilla, as well as by lala kanhai lal who claimed to have been adopted as son by mst. they must, however fail because they are not for a.....rachhpal singh, j.1. this is a plaintiff's first appeal arising out of a suit for possession over the properties specified in the plaint. the facts of the case can briefly be stated as follows:babu ballabh das had four sons, gopal das, jhabbu lal, gobind ram and sohan lal. gobind barn's wife was one mt. jamna dei. he had two sons, durga pershad and bhagwan das. babu ballabh das and his four sons constituted a joint hindu family. ballabh das died in 1906. it is the case of both parties that shortly before his death a partition of the family estate had taken place, but no deed had been executed in the life-time of babu ballabh das. it is necessary to state here that babu gobind ram, his son, had died in the life-time of ballabh das and so had bhagwan das, one of the two sons of gobind ram......
Judgment:

Rachhpal Singh, J.

1. This is a plaintiff's first appeal arising out of a suit for possession over the properties specified in the plaint. The facts of the case can briefly be stated as follows:

Babu Ballabh Das had four sons, Gopal Das, Jhabbu Lal, Gobind Ram and Sohan Lal. Gobind Barn's wife was one Mt. Jamna Dei. He had two sons, Durga Pershad and Bhagwan Das. Babu Ballabh Das and his four sons constituted a joint Hindu family. Ballabh Das died in 1906. It is the case of both parties that shortly before his death a partition of the family estate had taken place, but no deed had been executed in the life-time of Babu Ballabh Das. It is necessary to state here that Babu Gobind Ram, his son, had died in the life-time of Ballabh Das and so had Bhagwan Das, one of the two sons of Gobind Ram. Bhagwan Das left one widow, Mt. Bhagwati. When the partition was made Durga Pershad, the minor son of Gobind Earn, represented this branch.

2. Shortly after the death of Babu Ballabh Das, three deeds of relinquishment were executed in 1907, under which the four branches of the family got certain properties exclusively. The plaintiff in the case before us is Sohan Lal, one of the sons of Babu Ballabh Das. His case is that the share, which was allotted at the partition to Gobind Earn, was held by his son Durga Pershad till his death. According to him, after the death of Durga Pershad, Mt. Jamna Dei, his mother, got possession over the properties in suit. She died in 1929. The plaintiff alleges that on the death of Mt. Jamna Dei he became entitled to the properties in suit as a reversioner of Durga Pershad deceased.

3. Jamna Dei under a deed, dated 27th June 1924, made a gift of one of the houses in suit valued at Rs. 10,000 in, favour of Srimati Arya Pratinithi Sabha. She also executed a will on 23rd November 1929, under which she willed all the properties which she had got from Durga Pershad, to Mt. Bhagwati. Under this-will a small portion of another house situate in Muhalla Pipal Mandi was given to Mathur Vaish Pathshala, defendant 2. The plaintiff claims that these deeds are not binding upon him, and he therefore.-sued the defendants to get possession over the properties in suit. The defence of the defendants was that on the 4th July 1906 Gobind Ram made a will in favour of his wife, Mt. Jamna Dei, under which he-gave an absolute estate to her in the properties owned by him, and, therefore the lady became full owner of the properties in suit. It was denied that the properties-specified in the plaint were the properties of Durga Prasad in which the plaintiff could claim a reversionary interest on the death of Durga Pershad. Another plea taken was that in view of the deeds of relinquishment, which were executed by Sohan Lal, plaintiff, and the other branches, representing the sons of Babu Ballabh. Das, the plaintiff was estopped from claiming the properties in suit. Some other pleas were also taken, but it is not necessary to refer to them here. It is enough to say that the above were the two principal points on which the case was fought between the parties in the Court below. The learned Subordinate Judge who decided the case came to the conclusion that the defendants had been, able to establish that Gobind Ram, the husband of Mt. Jamna Dei, had made an oral will giving away all his properties to-her.

4. On the question of estopped the learned Subordinate Judge has given a decision in favour of the defendants. His opinion is that in view of the deed of relinquishment, which was executed by the plaintiff in 1907, he was estopped from making any claim to the properties in suit in his capacity as a reversioner. The result of the above findings was that the plaintiff's suit was dismissed by the learned Subordinate Judge. The plaintiff has come up in appeal to this Court against the decision of the trial Court. The first important question which we are called upon to decide in this case is whether or not Gobind Ram, the husband of Mt. Jamna Dei, had made an oral will in her favour giving her all his properties. The only evidence on this point is the statement made by Gobind Prasad, a witness of the defendants. The evidence of this man is printed at pp. 13 and 14. He is a relation of Mt. Bhagwati, defendant 1, to whom the major portion of the properties which Mt. Jamna Dei was in possession of has been left. He admits that Mt. Bhagwati is the daughter of his own sister. The witness deposes that when Gobind Ram was ill he went to see him shortly before his death. He found Mt. Jamna Dei weeping and saying that one son was dead, that the other was sickly; how she was to sustain herself after his (Gobind Ram's) death. The witness deposes that upon this Gobind Ram stated in reply as follows:

You will remain full owner as I am you may make charities to the good of my soul and look after the child.

5. The learned Subordinate Judge appears to have believed the evidence of this witness. We have considered the evidence and after hearing the learned Counsel for the parties we are of opinion that the evidence of Gobind Prasad as regards the making of the alleged oral will by Gobind Ram should not be accepted. His evidence is not corroborated by any other witnesses. It was contended on behalf of the defendant-respondents that this could not be done, as all the other witnesses, who were present at the time when this oral will was made, were dead. So here we have a case in which the point in issue has to be decided on the testimony of one witness. In case of this description it is unsafe to rely on evidence of this nature unless there is some corroborative evidence. Having regard to some of the points which we are going to enumerate now, we think that the statement of this witness should not be accepted in this case. In the first place, we have to bear in mind that the witness is a very-near relation of Mt. Bhagwati. Mt. Bhagwati, defendant 1, in the ordinary course would have had no right of any kind in the properties in suit.

6. She can retain the properties only if it is found that Mt. Jamna Dei had become an absolute owner of the estate of her husband after his death. So it would appear that the witness is greatly interested in seeing that the properties remain with his relation, defendant 1. On 4th January 1907 the three deeds of relinquishment were executed in connection with the joint family properties of Ballabh Das and his sons. Mt. Jamna Dei was a party to one of these relinquishment deeds which is printed at p. 47. This was an occasion when we would have expected Mt. Jamna Dei to. make a statement in assertion of the oral will which has been set up in this case. But there is no mention in this deed of relinquishment about this alleged oral will. Another relinquishment deed executed by Gopal Das, one of the sons of Babu Ballabh Das, is printed at p. 43. In that deed we find Lala Gopal Das. making the following declaration:

I further declare that the house newly constructed by my deceased father is situate in Seetla Gali, Agra. It was given as a gift by my deceased father, during his lifetime, exclusively to Lala Govind Ram, deceased aforesaid, my own brother, without the participation of any other person. Therefore Durga Pershad, minor aforesaid, son of the late Govind Ram aforesaid, is and shall in future be, the owner of that house without the participation of any other person, and I and my heirs neither have nor shall have in future any concern, connection or claim in respect of it also.

7. We have to bear in mind that each party in these relinquishment deeds was, admitting the claim of other members to some extent, and it is therefore that we-find that in this deed of relinquishment by Lala Gopal Das he admits that Durga Pershad, minor, is the owner of the house of Lala Gobind Ram which was in Seetla Gali, Agra. It is strange that Mt. Jamna, Dei never in her relinquishment deed or -soon after its execution challenged the statement made by Gopal Das about Durga Pershad's ownership in respect of this house which must have been made.-to her knowledge. In her relinquishment, deed she never asserted that she was the owner of any property under an oral will of her husband. If she had got this house under the oral will of her husband, we would have expected her to do so. In 1916 Mt. Jamna Dei made an application for succession certificate in respect of the debts due to Durga Pershad, her deceased son. This application is printed at p. 61. It is important to remember that one of the items shown in this application is:

Rent due by Munna Lal Vaish,...as regards the house situated at Hing Mandi, Agra, Rs. 31-8-0.

8. According to the case set up by the defendants, Mt. Jamna Dei was the owner of all the properties of her husband under the oral will. We however find that in 1916 she is admitting the ownership of Durga Pershad, her deceased son, in respect of one of the houses in suit in her application referred to above. Another point to be borne in mind is that no explanation has been given by the defendants as to how Durga Pershad came to possess debts and securities mentioned in the sale certificates if the entire properties belonging to his father went to Mt. Jamna Dei under an oral will. In 1924 Mt. Jamna Dei executed a deed of gift in favour of Srimati Arya Pratinidhi Sabha which is printed at p. 67. A perusal of this deed goes to show that the story about the alleged oral will in favour of Mt. Jamna Dei cannot possibly be true. This deed of gift relates to a three storeyed building. She recites in this deed of gift that the building was at one time owned and possessed by her husband Babu Gobind Ram separately from his brothers and that Babu Gobind Ram remained in exclusive proprietary possession and enjoyment of the property till his death. After that comes an important passage in which she makes the following statement:

After his death, my son, Durga Pershad, entered upon possession of the property as owner and in his favour the brothers of Babu Gobind Ram aforesaid executed a deed of relinquishment, dated and registered on 7th January 1907. But unfortunately for me, Durga Pershad also died, and now there is no heir other than myself. It was the heart-felt desire of Babu Gobind Ram deceased that the property aforesaid should be dedicated for some charitable purpose, but he could not see his desire fulfilled owing to his sudden death, and he executed a will in favour of me, the executant, directing that I should dedicate the said property for some charitable object or for some educational work. When Durga Pershad aforesaid died, it was my firm intention and I had fully made up my mind, that I should dedicate this property for female education so that the will of Gobind Ram aforesaid might be complied with and the names of his deceased sons, Bhagwan Das and Durga Pershad, might be perpetuated. I, the executant, have been in possession and enjoyment of the entire property aforesaid from the date of the death of Babu Gobind Ram jointly with Durga Pershad deceased, and from the date of the death of the latter, i. e, Durga Pershad, exclusively, and I have all the proprietary powers with regard to its transfer....

9. Here we find her admitting the ownership of her son Durga Pershad in respect of the property of her husband in very clear words. She ' says in clear language that after the death of her husband Durga Pershad, her son, entered; upon possession of the property as owner. Later on she admits that Durga Pershad had been in possession over the estate till his death. It was true that she states that she was jointly in possession and enjoyment of the property, but that does not mean anything. She was the mother and Durga Pershad was a minor. Naturally she will be managing the affairs of Durga Pershad and her possession will be the possession of Durga Pershad whose title she herself admitted in this deed of gift. Had there been any oral will made by her husband, Gobind Ram, in her favour, we would have expected her to make a mention of this fact in this deed. She was executing a gift for a charitable purpose, and we think that had any will been made in favour of Mt. Jamna Dei, there would have been a mention of it in this deed. It appears to us that till then no body thought that later on it may be necessary to set up an oral will of this description. It is only for the first time in November 1929, when Mt. Jamna Dei made a will in favour of Mt. Bhagwati, defendant 1, that we find that there is a mention of this will. The will of Mt. Jamna Dei is printed at pages 71 and 72, and in this she states that at the time of his death her husband had declared and made her permanent and full owner of his entire moveable and immoveable property by means of an oral will. But it cannot be believed that this recital made by her was correct, because we find that in 1924 when she had made a gift in favour of defendant 3 she had never mentioned this will but had admitted the ownership of her son, Durga Pershad. For these reasons we are of opinion that the defendants have failed to establish that an oral will had been made by Go-bind Ram in favour of Mt. Jamna Dei, his wife.

10. The next question which we have to decide in this case, is whether the finding of the court below to the effect that plaintiff is estopped from asserting his claim in respect of the properties in suit as reversioner of Durga Pershad deceased in view of the relinquishment deed executed by him is correct. It appears that Babu Ballabh Das shortly before his death arranged for a division of the joint family estate between his sons. In the three relinquishment deeds, which the various branches executed, this fact is mentioned. One was executed by Gopal Das, which is' printed at pages 43 and 44. It is recited in this that Babu Ballabh Das had made certain dispositions of the family estate by way of partition, and the various branches of the family were giving effect to that partition made by Babu Ballabh Das. Gopal Das for himself and another branch of the family in lieu of the properties given to them relinquished all rights which had been allotted to Durga Pershad, plaintiff and others. Similarly Mt. Jamna Dei executed a relinquishment deed, which is printed at page 47, in which she recites that she and the other heirs of Gobind Ram deceased would not set up any claim against the properties given to other branches of the family. The deed, which plaintiff executed, is printed at p. 51.

11. He like others recites what had been given to him as a result of the partition made by Ballabh Das in his life-time. He accepts what was given to him and further states that he will have no right whatsoever to the properties given to other branches. The result of these throe deeds of relinquishment is this, that Lala Ballabh Das in his lifetime had arranged how the joint family estate was to be divided. To each set he allotted certain properties. After his death the relinquishment deeds were executed. Each branch accepted the mode of partition which had been adopted by Lala Ballabh Das. They accepted what was given to them by Ballabh Das and gave up their claim in respect of the properties given to the other branches. The learned Subordinate Judge was of opinion that this arrangement created an estoppel in the way of the plaintiff. On a consideration of this matter, we are unable to 'agree with the view taken by the learned Subordinate Judge. The mistake which the learned Subordinate Judge makes is this. He assumes that in the present case the plaintiff is asking for a bigger share in the joint family properties than what was given to him by Ballabh Das. This argument is fallacious and cannot be accepted. The learned Subordinate Judge at p. 19 in his judgment says:

In view of the above findings, I hold that Sohan Lal, plaintiff, would have been a reversioner of the property left by his minor nephew Durga Pershad but for the family settlement; The is estopped from resiling from his waiver of such rights in consideration of much more bigger shares that he secured in the partition as against other members.

12. This view is not correct. The plaintiff does not ask that anything over and above what was granted to him as a result of the partition should be given to him. Had he laid any such claim against the other persons who were parties to those proceedings, then certainly his claim could be resisted on the ground of estoppel. But in the case before us the plaintiff asks nothing of the kind. He on the other hand accepts what was given to Durga Pershad at the time of the partition. He does not challenge the partition made between him and other members of the family; on the other hand he agrees to it. All that he says is that on the death of Durga Pershad his mother succeeded to his estate as Hindu widow, and on her death he is the reversioner of Durga Pershad and is entitled to succeed to the estate. It is not easy to understand how it can be said that his claim is barred by the rule of estoppel. It will be seen that under the terms of the relinquishment certain female members of the family were allotted some cash.

13. If the plaintiff had come forward to lay a claim to the items given to these female relations, it is clear that his claim would be liable to fail. As a result of the partition the ladies had been given something and, as the plaintiff was a party to those proceedings, he could not be heard to say that he had got any right to any property which under the partition deed had been allotted to any of the ladies. But in the case before us the plaintiff makes no such claim. Under the terms of the partition Mt. Jamna Dei had been given a sum of Rs. 9,000. Plaintiff could not have claimed that amount. Had he laid any such claim, it would have been resisted on the ground that under a family arrangement this sum was given to Mt. Jamna Dei and the arrangement was final and could not be disturbed. But, so far as the property which was allotted to Durga Pershad is concerned, the matter stands on a different footing altogether. The plaintiff is not claiming that property against the terms of the deeds of relinquishment; on the other hand he admits those terms. He does not claim the estate as against Durga Pershad, but he claims the same, as an heir of Durga Pershad. It cannot be said that such a claim can be resisted on the ground of estoppel.

14. Learned Counsel appearing for the respondents placed reliance on Kanhai Lal v. Brij Lal 1918 16 ALJ 825. This is a ruling of their Lordships of the Privy Council. In our opinion that ruling has no application to the case before us. The facts there were altogether different. It appears that one Balak Ram was the owner of the property which was in dispute in that case. Balak Ram had three sons, Bahadur Lal, Badri Prasad and Ganga Ram. He also had a daughter Mst. Ram Piari, whose son was one Kanhai Lal. It was found in that case that at the time of his death in 1883 Bahadur Lal was by survivorship the sole owner of the family estate and on his death his widow Mt. Ram Dei became entitled to the estate for life. The other widows in the family, Mt. Parbati, widow of Badri Prasad, and Mt. Kau-silla, widow of Ganga Ram, being merely entitled to maintenance. The title of Mt. Ram Dei was disputed by Mst. Parbati and Mt. Kausilla, as well as by Lala Kanhai Lal who claimed to have been adopted as son by Mst. Parbati, the widow of Badri Prasad. The position at the time when dispute arose was this. As all the other male members of the family had died, Bahadur Lal was entitled to the whole estate by right of survivorship. When he died Mt. Ram Dei became entitled to the entire estate as a Hindu widow. She was claiming to hold the entire estate, which on her death would have gone to her daughter and then to her daughter's daughter. On the other hand, Kanhai Lal laid a claim to the entire estate to the exclusion of Mt. Ram Dei on the ground that his Position was that of an adopted son and, therefore, he was entitled to the entire joint family estate.

15. The position, therefore, was this that each party was claiming the entire estate and, before the matter could be decided one way or the other, the Court had to decide the question as to whether or not Kanhai Lal had in fact been adopted by Mt. Parbati and whether as a result of that adoption he could succeed to the entire family estate. In order to settle their disputes Kanhai Lal, Mt. Ram Dei, Mt. Parbati, Mt. Kausilla and Mt. Kirpa all entered into an agreement under which they referred the matter to an arbitrator. That arbitrator gave his-award the result of which was that the joint family estate, which, but for the claim laid by Kanhai Lal and the other widows, should have gone in its entirety to Mt. Ram Dei, was divided into four portions. Mt. Ram Dei got one portion and the other widows also got one portion each. The arbitrator disallowed the claim of Kanhai Lal. Though he held that he had been adopted by Mt. Parbati, yet he did not grant him any share in the family properties. He only granted a share to Mt. Parbati and decided that Kanhi Lal would get that estate. The matter was decided accordingly and, as pointed out by their Lordships of the Privy Council in the aforesaid ruling at p. 829:

Lala Kanhai Lalgot no share in the family property, but in fact he got the one-fourth share-which was allotted to Mt. Parbati, and he-further obtained the benefit of having thevalidity of his adoption by Mt. Parbati left-undecided by a Court of law.

16. In view of these circumstances their Lordships came to the conclusion that Kanhai Lal was subsequently debarred from laying a claim to the estate which as a result of the above mentioned compromise had been allotted to Mt. Ram Dei on whose death he claimed to be her reversioner. The reason was that under the terms of the compromise Mt. Ram Dei lost three-fourths of the entire-estate which she claimed as a Hindus widow after the death of her husband. Further she lost the benefit which could have arisen to her. She also lost the right of her daughter to succeed to her to the entire estate. Under the compromise in view of her giving up a major portion of her claim she was allotted an absolute estate so far as one-fourth share-was concerned. Kanhai Lal was saved the trouble of proving that he had been adopted by Mt. Parbati with the results that he got the one-fourth share which had been allotted to Mt. Parbati. That-was a clear case of estoppel. In the case-before us, however, the facts are totally different. Here at the time of the partition all the four branches had been given-shares in the family estate, and the only question which has to be decided is whether the plaintiff can as a reversioner-claim the estate which had been allotted to Durga Pershad. It was open to the parties to have laid down conditions in the family settlement which would prevent one or all of them from laying any claim to the estate granted to the other even as his reversioners. But in the deeds of relinquishment before us there is no such condition. The learned Subordinate Judge in his judgment has admitted this fact. This being so, there is nothing which prevents the plaintiff from claiming the estate of Durga Per-shad deceased. As we have pointed out already, the plaintiff is not attacking the partition; nor is he asking anything over and above which was granted to him under those deeds but is claiming the estate as reversioner of Durga Per-shad. There can be no doubt that he is the reversioner of Durga Pershad, and he is entitled to the estate after the death of Mt. Jamna Dei whose position was that of a Hindu mother. She was entitled to hold the estate for life, and after her death the plaintiff became entitled to it. It should be borne in mind that under the Relinquishment deeds no estate of any kind was granted to Mt. Jamna Dei; nor is the plaintiff asking that any estate, which might have been granted to Jamna Dei under the terms of the partition, should be given to him.

17. The next question for consideration is whether the gifts made in favour of Mathur Vaish Pathshala, defendant 2, and Srimati Arya Pratinidhi Sabha, defendant 3, can be upheld. The defence set up was that these gifts were made by Mt. Jamna Dei for charitable purposes and therefore they are binding on the reversioners. For the purposes of deciding this question it has to be assumed that Mt. Jamna Dei was in possession of the estate as a Hindu mother. The position of a Hindu mother in Hindu law is similar to that of a Hindu widow. The point for consideration is whether a Hindu widow in possession of her husband's estate as a limited owner, is competent to make a gift of the property or a portion thereof which is in her possession for a charitable purpose. 'We proceed to consider this point. According to Hindu law, as it stands now, the position stands thus: A widow or other female heir may alienate the estate for certain religious or charitable purposes. These purposes may be divided into two classes, namely:

(1) The performance of the obsequial ceremonies of the deceased owner and the payment of his debts. (2) The performance of religious ceremonies of persons other than the deceased owner whose ceremonies the deceased owner was bound to perform: see Mulla's Hindu Law, Edn. 7 pp. 182 and 183. As regards cases falling, within the first class, her powers are very wide. If the income of the estate is not sufficient to meet those expenses she is entitled to sell the whole of it. As regards the second class, she can alienate a small portion of the estate only for pious and charitable purposes. The expense that is allowable as regards, this class of acts, must be limited by a due regard to the entire bulk of the estate, and may even be totally disallowed where it is not warranted by the circumstances of the family. In Mulla's Hindu law, p. 183, religious and charitable purposes are enumerated as follows:1. Performance of funeral and Sradha ceremonies of the deceased owner. These acts are essential and obligatory. 2. Performance of religious ceremonies of persons whose ceremonies the deceased owner was bound to perform, as for instance, the Sradha of husband's mother,, and where a daughter inherits to her father, the performance of her mother's Sradha. These ceremonies are not essential or obligatory. 3. Religious or charitable acts which conduce to the spiritual welfare of her husband. These acts are not essential or obligatory. The two gifts made in the case before us, at the most, might be said to come within the third category. Now the main point for consideration is whether gifts made to educational institutions can be classed as gifts for charitable purposes which might conduce to the spiritual benefit of her husband or her son Durga Prasad who was the last male owner. The gifts for religious purposes, in our opinion, it is difficult to hold that according to Hindu law, as it stands, these gifts can be classed as gifts made for charitable purposes which would conduce to the spiritual benefit of the husband or the son of Mt. Jamna Dei. The gifts were no doubt made for very noble and pious purposes, but it cannot be said that they were made for purpose which would-conduce to the spiritual benefit of her husband or her son. The test to be applied to gifts of this nature is 'spiritual benefit.

18. In Sardar Singh v. Kunji Behari Lal 1922 44 All 503 their Lordships of the Privy Council observed:

In their Lordships opinion the Hindu law recognizes the validity of the dedication or alienation of a small fraction of the property by a Hindu female for the continuous benefit of the soul of the deceased owner.

19. As we have already remarked the gifts in question may be for a very noble and 'pious purpose. They must, however fail because they are not for a purpose which would conduce to the spiritual benefit of the soul of the deceased owner. Even if it be assumed that the gifts in question wore made for a charitable purpose conducive to the spiritual benefit of the soul of the last male owner, they must fail. Their Lordships of the Privy Council in Sardar Singh v. Kunji Behari Lal 1922 44 All 503 held that female owner may make an alienation of a small fraction of the estate for the continuous benefit of the soul of the deceased owner. When that test is applied to the case before us, it is clear that the two gifts cannot be upheld. Here we find that very valuable properties have been gifted to defendants 2 and 3. The gift in favour of Srimati Arya Pritinidhi Sabha is of property valued at Rs. 10,000. The other gift made in favour- of Mathur Vaish Pathshala is of a portion of a house which is valued at Rs. 6,000. In our opinion, these gifts cannot be held binding upon the plaintiff. As regards the will bequeathing the major portion of the estate to defendant 1, all that need be said is that Mt. Jamna Dei had no power to make it, as she was in possession of the estate as a Hindu mother.

20. One more point remains to be decided. According to our findings, the plaintiff is entitled to immoveable property left by Durga Prashad. It appears, however from his plaint that in addition to that he claimed a sum of Rs. 1,495 on account of certain deposits in Banks and Post-Office. He claimed this amount as the property of Durga Pershad deceased. The defendant, as we have seen, had denied this allegation. The plaintiff has proved that he is the heir of Durga Pershad, but in order to get relief in respect of the aforesaid sum of money he had further to establish that Durga Pershad was the owner of the deposits in question. Admittedly on this question no evidence has been produced, and we are therefore unable to hold that Durga Pershad owned the money deposited in Post Office and Banks and therefore the plaintiff's claim in respect of this item of Rs. 1,495 must be disallowed. For the reasons given above we allow this appeal, set aside the decree made by the Court below and decree the plaintiff's claim for the immoveable properties in suit which are specified in the plaint. We dismiss his claim in respect of the item of Rs. 1,495 with costs. The plaintiff will be entitled to recover one-fourth of the costs awarded to him from defendant 2, Mathur Vaish Pathshala; and for the balance of plaintiff's costs in both the Courts, defendants 1 and 3 will be liable.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //