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TMI Blog1926 (11) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... leaded in the case as Defendants Nos. 3, 4 and 5, but were subsequently discharged and their names struck off the record on the ground that they disclaimed all interest in the property in suit. We are thus concerned with only two defendants, Defendants Nos. 1 and 2. 2. There are six lists attached to the plaint describing the property in suit. List A contains 91 villages situate in the district of Bahraich, of which 90 villages namely, Nos. 1 to 89 and 91, constitute mahal Bhinga and one village, No. 90, constitutes mahal Lakhna List B contains 27 villages situate in the district, of Gonda and constitutes mahal Usraina. List C consists of 32 houses of which 26 houses including the big palace at Bhinga are situate in mahal Bhinga itself. Out of the remaining six houses, three are situate in the town of Bahraich which is the headquarters of the district and the remaining three are situate one at Gonda, one at Luck-now and one at Allahabad. List D consists of the moveable property and furniture found in the palace at Bhinga and in the other houses in suit. List B consists of a sum of ₹ 76,000-3-9 of which ₹ 54,680-3-9 is the money alleged to have existed in the estate t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... soon after the execution of the will, The Raja died in July 1913, and his widow Rani (afterwards Maharani) Murar Kumari Davi died on the 30th of April 1926. After the death of the Raja the whole of the moveable and immovable property left by him, it is alleged, came into the possession of his widow Maharani Murar Kumari Davi as provided in the will, his son, the plaintiff's husband, having predeceased the Raja. The Maharani remained in possession of the property till has death. 4. The sum of ₹ 54,630-3-9 out of the money entered in list B which is alleged to have existed in the estate treasury at Bhinga at the time of her death is said to be the savings of the three mahals, mentioned above, effected by the Maharani during her lifetime. The Government securities, it is alleged, were purchased by her out of the savings of the same estate and the same was alleged in respect of the cash held by the Imperial Bank at Benares. The plaintiff's allegation is that she is entitled to a life estate in the properties entered in lists A, B and C and should therefore get a decree for possession of the same against Defendant No. 1 who has after the death of Maharani Murar Kumari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aration made by the late Raja under the provisions of the Oudh Settled Estates Act 2 of 1900. 6. Regarding the moveable property entered in list D it is alleged that it also constitutes an accretion or appurtenance to the taluqa and the Defendant No. 1 toeing entitled to the taluqa is also entitled to the sum of Es, 54,680-3-9. It is said that that sum being (the income of the taluqa also constituted accretion to to it and Defendant No. 1 was entitled to that also. As to the sum collected from the estate by Defendant No. 1 after the death of Maharani Murar Kumari Devi, the contention is that the plaintiff is entitled to no portion o# it inasmuch as she had no title to the property from which the said sum had been collected. It is urged that defendant being entitled to property had rightfully made those collections and the plaintiff could not claim a decree for the whole or any portion of the same. The defendant also denied the accuracy of the figures of collection given by the plaintiff . As to the property entered in list F it is admitted that it is the stridhan of Maharani Murar Kumari Devi, but it is contended that it should go along with the main taluqa of Bhinga of which it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ath? How much of the said collections was in respect of mahal Bhinga and how much in respect of mahal Usraina? Which of the parties is entitled to the said collection? 7. Is the plaintiff or Defendant No. 1 heir to the properties which constitute the stridhan of Maharani Murar Kumari Devi? 8. Does the property entered in list F attached to the plaint, consisting of the Government securities and cash held by the Imperial Bank Benares, constitute the stridhan of the late Maharani Murar Kumari Devi or was it the property of the late Raja Udai Pratap Sinha? Which of the parties is entitled to the said property? 9. To what relief, if any, is the plaintiff entitled. 8. I now proceed to give my findings on these issues: Findings 9. Issue No. 1. This is the most important issue in the case. I should like to state certain facts which are relevant to the discussion of this issue. It is admitted that in 1906, when the Raja applied to the Government for permission to declare that a portion of his estate should in future be held subject to the provisions of Act 2 of 1900, he was possessed of taluka Bhinga, situate in the district of Bahraich, consisting of two mahals, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il 1908, was published in the Government Gazette of the United Provinces, bearing date the 25th April 1908, on page 360, Part I. This notification was issued under Section 6 of the said Act and stated that the required permission had been granted under the said section to the late Raja to declare that the portion of his estate for which he had sought permission could be declared by him to be held in future subject to the provisions of the said Act. The permission was to remain in force until the expiry of three months from the date of the publication of the said permission in English in the Gazette or until the death of the Raja, whichever happened first: vide Ex. A-2. To this notification was also attached a schedule containing precisely the same villages which were entered in the schedule attached to the previous notification, In pursuance of the said permission the Raja, on the 21st May 1908 executed a declaration under Section 10 of the said Act. This declaration was also published in the Government Gazette of the United Provinces, dated the 5th September 1908, on page 915, Part I: vide Ex. A-3. In the declaration the Raja also stated that he made this declaration irrevocable u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act 1869. 12. I must also now state that after the Raja had applied for permission under Section 3 and after the permission had been granted to him by the Government on the 26th of February 1907, he executed a will on the 17th June 1907, the effect of which is a matter in dispute in this case. This will was executed by the Raja at Benares and was duly registered on the 22nd of June 1907. It has been filed in the case and has been marked as Exhibit 1. By virtue of this will Raja Udai Pratap Sinha Deo Somyaji bequeathed his entire estate, moveable and immovable, to his then surviving son, Kunwar Mahendra Bikram Sinha Deo, with this exception that he gave to his wife Rani Murar Kumari Deo for her absolute use and benefit all moneys, jewels and gold and silver plate belonging to him on the date of his death and also provided for the payment of a yearly maintenance of ₹ 24,000 during her lifetime, which he declared was to be a charge on the property bequeathed. The will also provided that in case the said son Kunwar Mahendra Bikram Sinha Deo died during the lifetime of the testator his entire estate consisting of moveable and immovable property was to go to his wife, Rani Mura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll and nothing that was done by the Raja subsequently could affect the validity of the said will and consequently Section 18 of the said Act did not apply to the case at all. It was also urged that even if Section 18 applied, the will did not in any way infringe any of the provisions of the said section inasmuch as the plaintiff was an heir to the late Raja under the law of the Mitakshara and could not therefore be considered a stranger. It was further argued that the will did not, by the mere fact that it gave a life estate to the plaintiff, exclude Defendant No. 1, who was an heir-at-law to the late Raja, from succeeding to the property. 15. These contentions require consideration of three points: (1) Whether the provisions of the Oudh Settled Estates Act apply to the will of the late Raja. (2) Whether the plaintiff is a stranger under the law of the Mitakshara and therefore under Act 1 of 1869; and (3) Whether the conferment of a life estate upon the plaintiff amounts in law to the exclusion from succession of Defendant No. 1 who is now admittedly the heir-at-law of the late Raja. 16. I proceed to give my decision on each of these three points: First point:--A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfer made by him thereafter was to be operative beyond his own lifetime. It is expressly declared in the said section that a settled estate or any part thereof, or the profits thereof, shall not be held by any Court to be or have vested in such person (i.e., a person entitled to a settled estate) for any larger or greater interest or time than for his life. No elaborate argument is, therefore, necessary to establish the evident proposition that the late Raja of Bhinga became possessed after the 21sb of May 1908, the date of the execution of the irrevocable declaration, of only a life estate in his taluqa. 19. To put it briefly, this was the estate which he was possessed of at the time of his death in July 1913. The argument that because the Raja was possessed of an absolute estate without any fetters attached to it at the time of the execution of his will in June 1907, the will must operate even after his death cannot be sustained. The will become operative and was to take effect only at the time of the death of the late Raja and we have to determine the nature of the estate which the Raja was possessed of at the time of his death. It is a well settled rule of law that a will op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious will in accordance with the provisions of Section 59 of Act 10 of 1865. Such a proposition is obviously untenable on the very face of it; it has only to be stated and to be rejected. 21. The learned advocate for the plaintiff cited two cases before me to substantiate the proposition that even an Act of Parliament passed subsequently to the execution of a will could not affect the validity of a will previously executed. They are Ashburnham v. Bradshaw [1740] 2 Atk.26 and Jones v. Ogle [1872] 8 Ch.192. The point decided in the first case was that a devise to charitable uses under a will executed in 1734 could not be rendered invalid by the Statute of Mortmain which came into force in June 1736, during the lifetime of the testator who died in July 1736. In my opinion this case is wholly irrelevant and does not apply to the present case at all. No portion of the testator's interest had been withdrawn or curtailed; only certain conditions as to the validity of the bequest had been imposed and it was held that those conditions could not make the bequest invalid which was valid in accordance with the law as it stood at the time of the execution thereof. I am willing to accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nized principle of the Benares school that no female can inherit to a male unless she is expressly named in the Mitakshara. The females expressly named in the Mitakshara are the widow, the daughter, the mother, the father's mother (grandmother), and father's father's mother (great-grandmother). No other female is named in the text and she is not, therefore, recognized as an heir. The same principle is recognized in Bengal also. This law has been recognized in the United Provinces for more than half a century. Several cases came up before the Sadar Diwani Adalat, North-Western Provinces about the succession of the widow of a deceased brother and her right to succeed was not recognized vide Soodeso v. Bisheshar Singh [1864] 2 S.D.A.N.W.P.365 and Deo Koonwar v. Gumbheer Koonwar [1864] 2 S.D.A.N.W.P.284 26. The matter came up before the Allahabad High Court in the year 1880 and Pearson and Oldfield, JJ., in Gauri Sahai v. Rukko [1881] 3 All.45, held that according to the Mitakshara law none but females expressly named could inherit, and the widow of the paternal uncle of a deceased Hindu, not being so named, was not entitled to succeed to his estate. The law on the subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... z., that she was not entitled to succeed because she was not expressly included in the line of heirs. Seven years later in 1889 there came up for decision before the same Court the case of a brother's widow. The case is reported in Jogdamba Koer v. Secretary of State [1889]16 Cal.367 It was argued at great length before Petheram, C.J., and Banerjee, J., and the learned Judges in an exhaustive judgment followed the rule of law laid down by the Allahabad High Court in Gauri Sahai v. Rukko [1881] 3 All.45 and Jagat Narain v. Sheo Das [1883] 5 All.311, and by their own Court in Ananda Bibi v. Nownit Lal [1882] 9 Cal.315, and Jellassur Koer v. Uggur Roy [1882] 9 Cal.725. This case was also a case relating to the province of Bihar and the parties were governed by the Benares school of Hindu Law. Coming to recent times the question also came up for decision before the Lahore High Court in a case reported in Mt. Sujan Devi v. Jagiri Mal [1920] 1 Lah.608. The judgment of the Court was delivered by Leslie-Jones, J., and on the principle that according to the Benares school of Hindu Law only those females were entitled to inherit who were expressly mentioned in the text, the claim of a br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udges of the Bombay High Court, of whom one was the same Judge who was responsible for the decision in Lakshmi bai v. Jairam Hari 6 Bom. H.C.R.152, followed the previous case and held that the daughter-in-law was entitled to succeed in preference to a distant cousin. No argument is to be found in the judgment at all. It is a short judgment and merely states the decision and quotes for its reason the decision reported in Lakshmibai v. Jairam Hari 6 Bom. H.C.R.152. In Lallubhai Bapubhai v. Mankuvarbai [1876] 2 Bom.388, which is a Full Bench decision of three Judges of the Bombay High Court, namely, Westropp, C.J., and Sargent and West. JJ., Westropp, C.J., observes (vide pp. 444 and 445) that the recognition of the widows of gotraja sapindas as themselves gotraja sapindas, however slender the basis on which it originally rested as far as collaterals are concerned, has become a part of the customary law wherever the doctrine of the Mitakshara prevailed and the Courts must give effect to it accordingly. 30. This statement was of course made with reference to the Bombay Presidency. Westropp, C.J., remarked in his judgment (vide p. 419) that high as undoubtedly was the authority of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acknowledged that the rule of succession to which they have given effect is but dimly enunciated in these passages, but the Judges have considered that the interpretation which has been given to them in Western India, evidenced by decisions and the opinions of Shastris has fixed and determined the law for that part of India.... According to the received doctrines of the Bengal and Madras schools, women are held to be incompetent to inherit, unless named and specified as heirs by special texts. This conclusion seems to be founded on a short text of Baudhayana which declares that 'women are devoid of the senses, and incompetent to inherit.' The same doctrine prevails in Benares; the author of the Viramitrodaya yields, though, apparently with reluctance, to this text (Chapter II, Part 7). The principle of the general incapacity of women for inheritance, founded on the text, just referred to, has not been adopted in Western India, where for example sisters are competent to inherit. That principle, therefore, does not stand in the way of the widow's claim in the present case. She still, however, has to establish that she is gotraja sapinda of her husband's family, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only against her husband. In short, she could only succeed to her husband's property or rights, namely, to the property which was actually vested in her husband, either in title or in possession, at the time of his death. She must take it at once at his death or not at all. No fresh rights can accrue to her as widow in consequence of the subsequent death of some one to whom he would have been heir if he had lived. Hence no claim as heir can be set up on behalf of the widow of a son or of a grandson or of a daughter's son or of a brother or of an uncle or of a cousin. 35. I, therefore, unhesitatingly hold that, according to the law of the Mitakshara prevalent in the United Provinces, the plaintiff, being the widow of a son of the late Raja Udai Pratap Sinha who predeceased his father, is not entitled to inherit any property of the late Raja. 36. Being no heir under the Hindu Law and not having been specified in any of the clauses of Section 22 of Act I of 1869 she must be deemed to be a stranger within the meaning of Section 18 of the Oudh Settled Estates Act (2 of 1900). 37. Third point.--I have now to consider the point whether the conferment of a life estate un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d exclude the heir-at-law by giving a life estate to a person who though not an heir-at-law was still an heir under any clause of Section 22 of Act 1 of 1869, but beyond this he had no power to go. If such a position were to be allowed it would be quite possible for a person holding a settled estate to deprive the person who would be entitled to succeed after his death under the provisions of Section 22 of Act 1 of 1869 by creating any number of life estates and thus taking away the chance of the succession of the heir-at-law altogether. Nothing could be easier than to destroy the intention of the framers of the Act by having recourse to such a device. I am, therefore, of opinion that when the Raja gave a second life estate to the plaintiff who is an absolute stranger as described above he in doing so exceeded his powers tinder the proviso to Clause (2) of Section 18, since his act had the effect of excluding Defendant No. 1 from succession. In my opinion a person who is entitled to succeed is entitled to take immediate possession of the estate to which he has succeeded, and if by any act of the holder of the settle estate his succession is postponed indefinitely he must be deeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties admit that it should go along with taluqa Bhinga, the whole of which except one village Lakhna constituting mahal Lakhna was declared by the late Raja to be a settled estate to be held in future subject to the provisions of the Oudh Settled Elates Act (2 of 1900). The palace is also situate in village Bhinga (khas) which is one of the villages forming part of the settled estate (vide Exhibits Al, A2 and A3). There is, therefore, no difficulty regarding the Bhinga palace situate at Bhinga. The will cannot be considered to be operative in respect of that property and Defendant No. 1 must be declared as entitled to the said house. There remain 28 other houses situate in the district of Bahraich. Out of these three are situate in the town of Bahraich itself and the remaining 25 within that portion of the taluqa which is a settled estate. Those which are thus situate within the settled estate consist of Items Nos. 2 to 13 and 20 to 32. It was proved by the evidence of Mr. J.N. Basu examined on behalf of the plaintiff (vide o. p. 60, P.W. 1) that all the houses mentioned in list O excepting Items Nos. 14 to 19 are situate on the land belonging to the Bhinga taluqa. 41. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their Lordships of the Privy Council. The house situate in one of those villages was also decreed to the plaintiffs and in giving that decree their Lordships observed (vide p. 262) that Item No. 20 comprised a. house in which Odan Thakur lived and must in their Lordships' opinion be recovered by the plaintiffs on the same principle on which they established their claim to Lots Nos. 1, to 21. Following the same principle, I hold that the 25 houses entered in list 0 as Items Nos. 2 to 13 and 20 to 32 must go along with the villages in which they are situate and which constitute the settled estate. Defendant No. 1 has been found to be entitled to those villages and he must now be held entitled also to the houses situate therein. (His Lordship then dealt with the other houses and furniture and proceeding my with Issue No. 6 continued.) The first point which I have to decide is whether the said sum which represents the savings effected by the late Maharani Murar Kumari Davi during her lifetime constitutes her stridhan or whether it forms an accretion to the estate in her possession which on her death would go to the person entitled to the corpus. I have given my best consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alcutta High Court was decided by that Court so far back as the year 1871. The case is reported in Ch. Bholanath Thakoor v. Mt. Bhagabatti Devi 7 B.L.R. 93. In that case one Odan Thakoor, during his lifetime adopted one Girdhari Thakur, his nephew, and shortly before his death executed deed of settlement in favour of his wife and daughter by virtue of which he gave one third of his property absolutely to his daughter named Sattyabatti and the rest of the property to his wife Mt. Chandrabatti for her life and after her death to his adopted son Girdhari. The widow was to appropriate the profits of the property during her lifetime, but was not in any way to alienate it. The widow purchased certain properties with the savings out of the income of the property given to her by her husband under the deed of settlement and also the property that had been subsequently acquired by the widow out of the savings of the property given to her by her husband. The heirs of the adopted son brought a suit for possession of the entire property against the granddaughter who had taken possession of the same. The defence raised in the case was to the effect that the property was the absolute property of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty that had been acquired by the widow out of the profits of the estate given to her by her husband. Their Lordships agreed with the Subordinate Judge in the construction which he had placed upon the deed of settlement according to which he gave to the widow an estate for life with power to appropriate the profits with a vested remainder going on her death to the adopted son. Their Lordships held that according to this construction the widow would have the power of making whatever use she chose of the profits of the estate, and if she bought land or personal property with them, that land and that property would be hers and would devolve on the defendant who represented her, being her stridhan heir: (vide p. 260 of 2 I.A.). 47. Their Lordships further observed that the case before them was not a case in which the widow claimed any right as-a widow--in fact she had none. Under those circumstances their Lordships came to the conclusion that the property purchased by the widow Mt. Chandrabatti out of the profits of her husband's estate belonged to her and after her death being her stridhan it went to the defendant who was the granddaughter of the lady in preference to the plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his case had never gone to the widow and there was no estate of her husband in her for her to augment In the case of Veeraraghava Reddi v. Kota Reddi [1916] 31 M.L.J. 465 their Lordships of the Madras High Court held after a review of authorities that when a Hindu widow received property from the family for her maintenance (not as a Hindu widow) and out of the savings from the income of that property, bought other property the property so purchased belonged to her in her absolute right and would descend to her heirs. The same view was taken by a Full Bench of the Madras High Court in an earlier case reported in Subramanian Chetti v Arunachelam Chetti [1904] 28 Mad. 1 (F.B.). In that case a Hindu widow purchased property with money received by her under a decree awarding maintenance made payable to her out of the revenues of a zamindari. She never had any right to possession of her husband's estate. It was held that the property was her stridhan and her daughter as heir to her stridhan was entitled to it. 51. Mr. Mayne in his well-known work on Hindu Law (9th edition), in Section 630 at page 916, deals with this matter and takes the same view. He, however, refers to certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solutely. The will expressly provides that she shall have no power under any circumstances, by sale, alienation, mortgage or otherwise to dispose of or encumber the whole or any portion of the moveable or immovable property for any period extending beyond the term of her natural life. 53. I have, therefore, been compelled to come to the conclusion that the estate conferred upon Maharani Murar Kumari Devi in respect of the property contained in list B also was not a Hindu widow's estate. The result, therefore, is that the Maharani was in possession of the properties entered in both lists A and B merely as the holder of a life estate granted to her by the late Raja under his will dated the 17th of June 1907. She was not in possession of any portion of the property given to her under the said will in the capacity of a Hindu widow. The position stated by Mr. Mayne cannot, therefore, be ascribed to the Maharani in -this case, and the rule laid down in Isri Dat's case as to the savings effected by her out of the profits of the property given to her by her husband cannot apply. I, therefore, hold that the sum of ₹ 54,680-3-9 which existed in the treasury at Bhinga on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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