SHAMTI BAI Vs. MIGGO DEVI

JUDGEMENT

(1.) This appeal by certificate arises out of a suit filed by the appellant for partition of joint family properties. The appellant claimed to be entitled to one third share in the joint family properties as the heir of her deceased husband Kedar Nath. It was common ground between the parties that Kedar Nath and his brother Kashi Prasad and Kailash Chand were members of a joint and undivided Hindu family and each of them was entitled to one third share in the joint family properties, Kedar Nath died on 17th February, 1944 leaving behind him as his only heir, his widow the appellant. Now ordinarily as the heir of Kedar Nath, the appellant would be entitled to the one third share of Kedar Nath but Kailash Chand claimed that his son Girish Chand was adopted by the appellant on 1st March, 1944 and that Girish Chand was, therefore, entitled to a moiety of the one third share of Kedar Nath and the appellant was entitled only to the other moiety. The appellant, therefore, filed Suit No. 22 of 1948 in the Civil Judge, Agra for partition of her one third share in the joint family properties. Kashi Prasad was joined as 1st defendant while Kailash Chand and Girish Chand were joined respectively as defendants Nos. 2 and 3 in the suit. Kashi Prasad died during the pendency of the suit and his widow Smt. Miggo Devi was brought on record as legal representative of Kashi Prasad. Smt. Miggo Devi Kailash Chand and Girish Chand are respectively respondents Nos. 1, 2 and 3 in the present appeal and we shall hereafter refer to them as respondents Nos. 1, 2 and 3. The appellant challenged in the suit the validity of the adoption of the third respondent on two main grounds; one was that in fact no adoption was made nor were any ceremonies of adoption gone through by the appellant and the other was that, in any event, the appellant was at no time authorised by Kedar Nath to take a son in adoption and the parties being governed by the Banaras School of Hindu Law, no adoption could in law be made by the appellant without the authority of Kedar Nath. It seems that prior to the filing of the suit, respondents Nos. 2 and 3 had set-up a will said to have been executed by Kedar Nath on 3rd January, 1944 under which only ornaments, a sum of Rs. 5,000 representing the amount of the policy of insurance and a sum of Rs. 15,000 in cash were given to the appellant, leaving the residue of his estate undisposed of and the appellant also, therefore, challenged the validity of this will in the suit on the ground that Kedar Nath was not in a sound and disposing state of mind when he made the will and the will was not properly executed as required by law and in any event, even if it was valid, it could not operate to dispose of the one-third share of Kedar Nath in the joint family properties. The respondents in their written statement admitted that Kedar Nath, the original respondent No. 1 and respondent Nos. 2 were members of a joint family governed by the Banaras School of Hindu Law and that Kedar Nath was entitled to one third share in the joint family properties at the time of his death, but their contention was that under the will dated 3rd January, 1944 which was properly executed by Kedar Nath in a sound and disposing state of mind and in accordance with law, the appellant was entitled to receive only the specific properties bequeathed to her under the will and she could not make a claim to any of the other properties left by Kedar Nath. The respondents contended in the alternative that, in any event, the adoption of the third respondent was valid and it was made by the appellant with the authority of Kedar Nath and the appellant was, therefore, entitled only to half of the one third share of Kedar Nath in the joint family properties, the other one half being inherited by the third respondent as the adopted son of Kedar Nath. The respondents also raised certain other contentions which are not necessary to mention for the purpose of the present appeal.

(2.) When the suit reached hearing before the learned trial Judge, the respondents led the evidence of several witnesses to prove the execution of will as also the factum and validity of the adoption of the third respondent. The appellant also examined herself and tow other witnesses to rebut the evidence led on behalf of the respondents. The learned trial Judge after considering the entire evidence adduced before him came to the conclusion that the will dated 3rd January, 1944 said to have been executed by Kedar Nath was invalid, since it had not been attested as required by law and in any event, it was not operative so as to dispose of the one-third share of Kedar Nath in the joint family properties. So far as the adoption of the third respondent was concerned, the learned trial Judge found that the factum of adoption was established and that Kedar Nath had authorised the appellant to make the adoption prior to his death and on this view, the learned trial Judge sustained the validity of the adoption and held that the appellant was entitled only to one sixth share in the joint family properties. It appears that there was also some dispute about 40 tolas of gold ornaments which the appellant claimed as her stridhana property but the learned trial Judge found that they were part of the joint family properties and since she had already received them, value be adjusted against her one sixth share. The learned trial Judge accordingly passed a preliminary decree for partition in these terms.

(3.) The appellant being aggrieved by the preliminary decree passed by the learned trial Judge preferred an appeal against the same, being first Appeal No. 153 of 1966, in the High court of Allahabad. There was no real controversy before the High Court in regard to the execution of the will, because even if the will were valid, it would not make any difference, since it would be ineffective to dispose of the one-third share of Kedar Nath in the joint family properties. But the principle dispute was in regard to the factum and validity of the adoption of the third respondent. So far as this dispute was concerned, the High Court took the view that on the evidence led by the parties it was clear that the ceremonies of adoption were performed and the adoption was in fact made. The High Court was not quite satisfied with the evidence in regard to the giving of authority by Kedar Nath to the appellant to make the adoption but in view of the fact that the appellant had gone through he ceremonies of adoption executed a deed of adoption reciting that she had been authorised by Kedar Nath to adopt the third respondent and made an application for appointment of herself as guardian of the third respondent, the High Court held that the authority of Kedar Nath to make the adoption must be held to be established. The High Court, however, took the view that so far as the 40 tolls of gold ornaments were concerned, they were the stridhana property of the appellant and therefore they should not be adjusted against her one-sixth share in the joint family properties. The High Court accordingly allowed the appeal to this limited extent and partially modified the preliminary decree passed by the learned trial Judge. The appellant thereupon preferred the present appeal after obtaining the necessary certificate from the High Court.