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TMI Blog1923 (7) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act as A list of the taluqdars whose estates according to the custom of the family on and before the thirteenth day of February, 1856, ordinarily devolved upon a single heir. 5. Hanwant Singh, before he received his sanad, had executed a deed of gift in favour of his grandson, Rampal Singh, of all his properties, except six villages. Disputes having arisen as to the nature and operative effect of the gift, the Raja, on the 16th of May, 1871, filed a suit against Rampal Singh in the court of the Deputy Commissioner of Sultanpur., praying for a declaration of his absolute proprietary right, notwithstanding the execution of the deed of gift. 6. The grandson appeared and defended the suit; and thereupon a compromise was arrived at, which was embodied in an agreement between the parties, which again was confirmed by a decree of the court. In compliance with that agreement Han want Singh executed an instrument which may not inappropriately be called a settlement. This document provided that Han want Singh should for his life be the proprietor in possession of one of the taluqdari estates. He was to have no power to make a will, sale or transfer affecting the estate beyond his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving made the transfer and intestate, the transfer of, and succession to, the property so transferred or bequeathed shall be regulated by the rides which would govern the transfer of, and succession to, such property if the transferee or legatee had bought the same from a person not being a taluqdar or grantee. 10. This transaction took place before the amending Act of 1910; so that a transfer to a person who is not the immediate successor, even, though that person be in the line of succession, operates to take the estate out of the special limitations of descent. The principle has been finally established by the case of Ghulam Abbas Khan v. Amatul Fatima I.L.R. (1921) All. 297 : L.R. 48 I.A. 135. 11. In these circumstances the original plaintiff Narain Singh, the father of the present appellants, claimed to succeed to the whole estate under the Mitakshara Law of the Benares School, or alternatively under a will executed by Lachman Singh; and the original defendant Gulem Singh alias Ramesh set up as defences that the deed of settlement was invalid, that the plaintiff was estopped under the principle of res judicata, that the estate was impartible, that he was the heir accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest did Lachman Singh take under the settlement? If he (took only a life estate, then the reversion descended to the heir or heirs of Hanwant Singh. If he took an absolute estate, then- 2. Had he the power to dispose of it by will? and this question raises a new point which was not discussed in the courts below. If he could not dispose of it by will, then- 3. Who are his heirs? In. connection with this point, it would have to be decided whether the estate in Lachman's hands was partible or impartible. 16. Wow as to the first point, it was strongly contended on behalf of the appellant, that the right way to read Clause 7 was to read it as an endeavour to fix the course of succession in the line prescribed by Section 22 of the Act of 1869, though the effect by virtue of Section 15 would be to take the estate out of the Act; and that, therefore, this was an attempt to create an order of succession unknown to the common law and unwarranted by the Act, which has been decided to be impossible by the judgment in the Tag ore case Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1872) 9 B.L.R. (P.C.) 377 : L.R. IndAp 47 and by various subsequent decisions. 17. It followed (s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, that Lachman received an absolute estate in reversion. 21. The next point for consideration is whether Lachman could dispose by will of the estate which was vested in him. This depends upon the question whether it was to be deemed ancestral property or self-acquired property. On this point their Lordships have little assistance from the courts below. He could not have been considered by the Subordinate Judge, because the respondent was not then relying on Lachman's will. It probably was not argued before the appellate court because counsel for the appellant had so little opportunity of addressing himself to this new point. But the appellate court, though without giving any reasons for it, did incidentally state its opinion that the property was self-acquired property. 22. It appears that there has been great diversity of opinion in the High Courts in India as to the effect in a Mitakshara family of a bequest made by a father of property which in the father's bunds was self-acquired, to his son. In Calcutta, in 1868, the point first arose in the case of Muddun Gopal v. Ram Buksh (1863) 6 W.R. 71 when it was held that such property would, be ancestral, and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon these points. It may be that some day this Board will have to decide1, between the conflicting decisions of the Indian High Courts, and it may be that when this time comes, this Board will prefer to go back to the original text of the Mitakshara and put its own construction upon that text. It is not necessary to do so in this case. 25. The principle upon which it is contended that such property should be detuned ancestral property, is that the son is only getting by his father's will that which, but for the will, he would have received by descent according to the Mitakshara Law. Now before Hanwant Singh made the settlement, the property was subject to the Act of 1869 and would have descended to a single heir in accordance with that Act, and would not have descended according to Mitakshara Law or to those whom that law would designate as heirs. The principles, therefore, of Mitakshara Law--if that law be as the High Court of Calcutta has thought and the appellant contends--would not apply to regulate the descent. Lachman, therefore, look the property as self-acquired property and could dispose of it by will. 26. It becomes, therefore, unnecessary to consider who would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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