LAWS(PAT)-1952-9-6

JITENDRA PRATAP Vs. PADAM KUERI

Decided On September 23, 1952
JITENDRA PRATAP Appellant
V/S
PADAM KUERI Respondents

JUDGEMENT

(1.) These appeals are presented on behalf of the plaintiff against the order of the Subordinate Judge of Gaya dated 31-5-1952, rejecting two applications, one for the appointment of a receiver with respect to the properties involved in the suit and the other for the issue of an 'ad interim' injunction against defendants 1 and 2 restraining them from taking delivery of possession of the properties mentioned in Schedules B and C of the plaint from the Court of Wards of Uttar Pradesh.

(2.) The dispute relates to the Tamkohi Raj which is an ancient impartible Raj, succession to which is governed according to the rule of lineal primogeniture. The Raj consists of movable and immovable properties located in the districts of Deoria, Gorakhpur and Basti in the Province of Uttar Pradesh and in the districts of Saran and Gaya in the Province of Bihar. Raja Indarjit Pratap Bahadur Sahi who was the last male holder of the Raj executed a registered will on 15-12-1939, whereby he conferred a Hindu woman's estate on Rani Jagdishwari Kuer in respect of all the properties comprised in the Tamkohi Raj. The Rani was given authority to adopt and it appears from the will that the testator intended that she should adopt one or the other of a number of persons who were mentioned in it. Raja Indarjit died on 12-6-1947. The Rani did not take probate of the will after the death of the Raja nor did she make any adoption in pursuance of the authority contained in the will. On 14-10-1950, Rani Jagdishwari died. It appears that after the death of the Raja the Court of Wards of. Uttar Pradesh had taken possession of so much of his estate as was situated in Uttar Pradesh. In April, 1951, Rani Padam Kueri, the mother of the Raja, applied to the High Court for letters of administration with a copy of the will annexed. In para. 10 of her petition Rani Padam Kueri stated that she had surrendered her right of inheritance in respect of the entire Raj in favour of Bhagwati Prasad Sahi, sister's son of Raja Indarjit. Rani Padam Kuer, therefore, asked that letters of administration may be granted either in her favour or in favour of Bhagwati Prasad Sahi. On 18-3-1952, the High Court granted letters of administration to Rani Padam Kueri holding that under the terms of the will she was entitled to certain legacies and other benefits. As regards the alleged surrender made by Rani Padam Kuer in favour of Bhagwati Prasad, the High Court did not express any opinion. Meanwhile Jitendra Pratap Bahadur Sahi instituted the present suit in the Court of the Subordinate Judge of Gaya claiming that Tamkohi Raj was an ancestral impartible estate, that succession to it was governed by the rule of lineal primogeniture, that Raja Indarjit had died on 12-6-1947, in a state of jointness with the other family members, that according to the admitted pedigree plaintiff was the eldest and sole surviving male member in the eldest line of the family and that he had succeeded to the Tamkohi Raj according to rule of survivorship. On 2-1-1952, the plaintiff applied to the subordinate Judge for appointing a receiver for all the properties comprised in the Tamkohi Raj and also for the issue of an injunction restraining defendants 1 and 2 from taking possession from the Court of Wards of the properties located in Uttar Pradesh. The plaintiff alleged that there was apprehension that the defendants would squander valuable assets and that they would commit misappropriation and waste. The application was contested by the defendants Rani Padam Kueri and Bhagwati Prasad Sahi who denied that there was any waste or misappropriation. They further asserted that Tamkohi Raj had ceased to be coparcenary property for the purpose of succession and that it was the separate property of Raja Indarjit at the time he executed the registered will. The defendants, therefore, contended that the rule of lineal primogeniture was not applicable in order to find out the lawful successor to the impartible estate. Defendant 1 Padam Kueri added that she had been appointed as administrator of the properties by virtue of the order of the High Court in the testamentary case, that she had taken charge of the estate of the testator. After examining the respective claims of the parties the learned Subordinate Judge held that in the circumstances of the case neither a receiver should be appointed for taking possession of the properties nor should a temporary injunction be granted in favour of the plaintiff.

(3.) In support of these appeals Mr. B. C. De argued 'in limine' that the plaintiff has established a strong 'prima facie' case of title and that the Subordinate Judge was erroneous in not considering the case from this angle. Learned counsel pointed out that according to the admitted pedigree the plaintiff was the nearest male agnate to Raja Indarjit. Learned counsel referred to -- 'Sarabjit Pratan v. Indarjit Pratap', 27 All 203 (A), in which it was held by the High Court that the Tamkohi Raj was an ancestral impartible estate governed by the rule of lineal primogeniture. As regard's the contention of the defendants that the estate had become the separate property of Raja Indarjit. Mr. De pointed out that by executing the registered will dated 15-12-1939, Raja Indarjit merely gave a life estate to Rani Jagdishwari conferring upon her authority to adopt a son from certain persons described in the will. Relying upon the authority of -- 'Shyam Pratap v. Collector of Etawah', AIR 1946 PC 103 (B), learned counsel argued that by granting life estate the Raja did not break the line of succession. Learned counsel maintained that there was no complete disposal of the proprietary interest and the character of the estate was [lot given any new direction but continued to be coparcenary property as before. Learned counsel further referred to the Ekrarnama of 1895, compromise decree of 1916 in -- 'First Appeal No. 138 of 1916' and also to two letters dated 25-2-1909, and 16-5-1910, addressed by Sarabjit Pratap Bahadur to the Collector of Gorakhpore. It was argued by Mr. De that the documents were not sufficient in law to establish separation in the case of an ancestral impartible estate. It was contended that in order to establish that an impartible estate had ceased to be joint family property for the purpose of succession it was necessary to prove an intention, express or implied, on behalf of the junior members of the family to renounce their right of succession to the estate. The argument was based upon the authority of two cases: -- 'Shiba Prasad v. Prayag Kumari', AIR 1932 PC 216 (C), and -- 'Collector of Gorakhpur v. Ramsundar Mal', AIR 1934 PC 157 (D).