BABU LAL Vs. RAM HARAKH AND OTHERS

JUDGEMENT

(1.) THIS is a Plaintiff's appeal. The suit was for a declaration that the Plaintiff had a one -fifth share in the property in dispute. This claim was based upon a will alleged to have been executed by one Beni, who had a one -fifth share in the plots of land in dispute. The will was alleged to have been executed on 16 -7 -1946, in favour of the first Plaintiff, who is the Appellant here. Beni, the executant of the will, died on 21 -12 -1954. The Plaintiff alleged that Beni along with other sons of Adhin constituted a joint Hindu family. The plots in dispute were purchased by a sale transaction undertaken in the name of the two of the sons of Adhin, namely, Kanhai and Gaya Din, but the sale was for the benefit of the entire family. Consequently, Beni had also a share in it. In defence, it was pleaded that the sons of Adhin did not constitute a joint Hindu family. The sale was for the benefit of Kanhai and Gaya Din alone. Beni had no interest in the plots.

(2.) THE Plaintiff's case that the sons of Adhin constituted a joint Hindu family and that the purchase was for the benefit of the family, has been accepted by both the courts below. But (they have held that Adhin could not validly bequeath by will his interest in the joint family properties. The Plaintiff hence did not acquire any share under the will. The courts below have declared the shares of the parties after ignoring the will. In the course of the hearing of the suit, the Plaintiff led evidence to show that Beni had separated from the joint family. There was no such plea, nor was an issue framed or pressed on this point. The trial court held that this plea could not, in the circumstances, be looked into. The trial court also observed that the case of separation 15 or 16 years ago has been set up by the Plaintiff's witnesses for the first time. No credence can be given to their statements on the point. The lower appellate court confirmed this finding by observing that no amount of evidence could be looked into on a point which was not pleaded.

(3.) IT was then urged that property in dispute has been found to be bhumidhari land. After the enforcement of the UP ZA and LR Act, it would be governed by the provisions of that Act. The UP ZA and LR Act specifically authorised bhumidhars to execute wills in relation to their bhumidhari interest, vide Section 169. In Mahendra Singh v. Attar Singh, 1967 AWR 73, a Division Bench of this Court has held that the bhumidhari properties are not subject to the incidents of the Hindu Law. Consequently, with effect from 1 -7 -1952, which was the date of vesting, the plots in dispute became bhumidhari and were liable to be governed by the provisions of the UP ZA and LR Act. Beni was then alive. Since the bhumidhari property was no longer governed by the legal incidents of Hindu Law, the members of the joint Hindu family became the holders of a defined share in the holding as co -bhumidhars. Their share became fixed and was no longer liable to fluctuation owing to births and deaths in the family. It was capable of being bequeathed by will.