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TMI Blog1931 (5) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... ed him. It will be convenient to refer to her as the appellant and to Prince Sri 5 Mohan Bikram Shah, the other person principally concerned in the present appeals, as the respondent. 4. The Raja's only son born to him of the appellant, died in infancy in 1897. He made three wills, which have given rise to this litigation. The first is dated 12th October 1901. The material terms are as follows: (2) If I adopt any boy in my lifetime and he be alive at the time of my death, such adopted son will be the proprietor of the whole of my property, (3) II I hive no son from any of the Ranis at the time of my death or I do not adopt a son or I adopt a son, and he dies in my lifetime, then after my death, Rani Chhatra Kumari Devi shall hive the power and I permit her to adopt a boy from my family, viz., from the family of Sri 5 Maharajiof Nepal, and if the boy dies she will adopt another boy from the same family. I permit Rani Chhatra Kumari Devi to adopt up to four boys in this manner one after another, and the boy who will be adopted according to the conditions laid down in this paragraph will be the proprietor of the whole of my property. (5) If, at the time of my death, I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble, cash and in kind situated in the District of Benares left by my grandmother Sri 5 Raj Lachmi Devi, which I hold by right of inheritance, and the houses, together with garden and trees, etc, situated at Ritanpura alias Bhagwanbazar in the town of Chapra, in the district of Saran, and other properties, moveable as well as immovable, cash and in kind, situated in every district of British India and other place3, which are now in my possession or which may hereafter come to my possession. During my lifetime I am myself the owner of all my property. After my death, if there be alive any male issue born to me by my Ranis, the said male issue will be the owner of the said riasat properties. I# I die without leaving behind me any issue from my Ranis, then the said Ram Raja will after my death take my place, will be my successor and will be the owner of my entire Riasat and all the properties, moveable and immovable, above referred to, of which I am now in possession as proprietor or which may hereafter come into my ownership or possession. I declare that after my death the said Ram Raja and his posterity from generation to generation, both in the male and female lines, being in propri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndant of the said Ram Raja or his male successor and representative, shall be the proprietor. 7. I do by this will revoke the will dated 12th October 1901, and the supurdnama, dated 14th April 1902, executed in the name of Rani Chhatra Kumari Devi, and the permission to adopt given by me. This is my last will. Now I shall have no power to mike any other will. 7. This will was registered on 29th May 1903, under the provisions of the Indian Registration Act, 1908, applicable to wills. The original document was banded over by the Raja, a few days after the adoption, to Maharani Kancha Maiya, the grandmother of the respondent in his natural family, and sent on by her to the Prime Minister. 8. On 25th May 1901, the Raja executed his third and last will, by which he revoked the second and revived the first will. After his death the appellant took possession of the estates and the usual mutation proceedings in the revenue Courts resulted in her favour. On 16th June 1912 she applied to the District Court of Muzaffarpur for probate of the third will combined with the first will of 12th October 1901, which was said to be confirmed and restored by the third. The respondent filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rani, I have given to hoc for life by mokarari lease the villages Lachmipur, Semri, Barwa, Atraowlia, Sarhua Mahjidwa and Pekooli Harkatwa, and Bazar Phuikaul, and a monthly allowance of ₹ 200; during her lifetime this will remain in force as usual. 8. I have revoked (mansukh kar dia) the will, dated 26th and registered on 29th May 1900. Now this will and also the will dated 12th October 1901, duly registered on 15th April 1902, shall remain in force. Therefore I have executed this will so that it may be of use in time and prove as testimony, 10. On 12th June 1905, the Raja executed a mokarari lease of 31 villages forming part of his estate, in favour of the appellant, of which she took possession in his lifetime. The validity of this grant is one of the questions in the present appeals, but its decision must depend upon the larger question of title involved between the parties. 11. The litigation out of which-the appeals have arisen commenced with Suit No. 4 of 1923, which was instituted by the appellant on 27th September 1923, against the respondent, claiming from him a sum of ₹ 1.7,909-14-3.as rent and other payments due under a sadhaua-patana lease dated 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n holding adversely to him without title. 16. The respondent claimed title as owner in various ways. In the first place, he said that the Raja's property was ancestral, and that therefore he could not dispose of it by will, and that on his death it passed by survivorship to the respondent as his adopted son. Their Lordships have already, in effect, disposed of this contention. They have no doubt that the property was not ancestral, and that the Raja had full disposing power over it. 17. In the second place, it was said that the document to which their Lordships have referred as the second will should be construed as a conveyance transferring in praesenti the property as it then was to the respondent subject only to the reservation of a life estate to the Raja. Both Courts in India have negatived this construction and, as their Lordships think, rightly. 18. The document is, in their opinion, clearly testamentary, and all the persons concerned seem to have so regarded it. If it could be read as a conveyance there would be a further difficulty as to registration. It was registered as a will under the provisions of Sections 18 and 51, Registration Act, 1908, and it is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was executed by the Raja conveying any property to the respondent. The second will purported to devise his estates to the respondent provided the Raja left no natural son: if he did leave such a son, the respondent would take nothing under the will. This was obviously not a fulfilment of the alleged agreement. Apart from any question of revocation of the will, the Raja, regained in unfettered ownership during his life, and was free to dispose of any part of his property by transfer inter vivos, and in any case the devise was conditional upon the Raja. having no natural son to succeed him, a contingency which, their Lordships-think, can hardly have been regarded as negligible seeing that he was still under forty, and though his constitution was no doubt greatly impaired, he in fact survived for another nine years. 24. The Subordinate Judge thought that the agreement pleaded had been established. He believed the evidence of the witnesses who deposed to it, and he speaks of it as being subsequently embodied in the will of 1903. This, in their Lordships' opinion, is an impossible view: the agreement pleaded is certainly not to be found in the will. 25. The High Court, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch case no agreement would have boon required, the adoption necessarily involving co-parcenership with the Raja. The burden of proof is, of course, upon the respondent, and having regard to the pleadings and the evidence, their Lordships cannot hold that the agreement now relied on has been established. The respondent's counsel were unable to say where or when it was made : probably at Benares some time in May 1903, was the nearest suggestion that could be put forward. There is no evidence that the terms of the will were ever communicated to Bhupatindra. Indeed, the High Court's judgment speaks of him as being a non-entity . in these transactions. Yet their Lordships are asked to say that the agreement upon the terms of the will was made with him. And it is at least remarkable that throughout the probate proceedings no suggestion was made that there had been any agreement at all. 29. This conclusion of fact would be sufficient for the disposal of all the present appeals, as it would follow necessarily that the respondent had no right to the properties in the possession of the appellant. But in view of the very careful argument which has been addressed to their Lords ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If Bhupatindra, his natural father, had obtained a decree against the Raja's estate, the respondent might conceivably have had some remedy against Bhupatindra, but he could hardly have claimed the properties from the appellant. 32. The argument for the respondent has been founded mainly on the principle enunciated in Dvfour v. Pereira 2 Harg. Jur. Argmts 304, which has been followed in more modern cases: Gray v. Perpetual Trustee Co. (1928) A.C. 391 In re Bagger (1930) 2 Ch. 190. On these authorities it is contended that the appellant, as the legal representative of the Raja, must be regarded as a trustee for the respondent. Their Lordships think that this might we'll have been the true position at the Raja's death and so long as the contract remained enforceable, but they doubt if the respondent could have any larger rights than Bhupatindra had, and the judgment of Lord Parker in Central Trust Co. v. Snider (1916) 1 A.C. 266, certainly suggests that in such a case the trust would only continue during such time as equity would enforce specific performance. 33. But even assuming that by reason of the contract the properties were impressed with a continuing trust i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly embodied in the will of 1903, the respondent had the right to claim the estate on the Raja's death, and was entitled to get possession of it from the appellant, there being nothing left for the will of 1904 to operate on. In the High Court the conclusion of Kulwant Sahay, J. was that under this will (of 1903) the adopted son acquired the right to take possession of the property immediately on the death of the Raja, and that the subsequent execution of the will of 1904 could not in law take away the title which was created in favour of the adopted boy under the complete contract. 34. Their Lordships have no doubt that under the two wills which have been admitted to probate, all the estate of the Raja was legally vested in the appellant, and that on the assumption that the agreement upon which the respondent has relied before them was proved, the rights of the respondent were barred at the time when he instituted his suit. 35. The conclusion to which their Lordships have come makes it unnecessary for them to deal with the various subsidiary matters which are involved in the four appeals now under consideration. In their opinion, the respondent's suit, ..... 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