JITENDRA PRATAP BAHADUR SAHI Vs. BHAGWATI PRASAD SINGH

JUDGEMENT

(1.) These are two analogous appeals involving almost common questions of law and fact. Appellant 1 in the First Appeal is the respondent in the Letters Patent Appeal. Since the result of the First Appeal will determine the decision in the Letters Patent Appeal, I shall consider that appeal first.

(2.) The First Appeal is by the plaintiffs from the judgment and decree dated 16-12-1954, of Mr. S. G. Waris, Additional Subordinate Judge, Gaya, dismissing the plaintiffs' suit concerning the succession to the impartible estate of Tamkohi in Uttar Pradesh. The said estate is comprised of immoveable properties situate in the districts of Deoria, Gorakhpur and Basti in the State of Uttar Pradesh and in the district of Saran and Gaya in the State of Bihar. The following admitted genealogy shows the descent of the family from the common ancestor and will help in appreciating the respective cases of the parties: <FRM>JUDGEMENT_457_AIR(PAT)_1956Html1.htm</FRM> It is common ground that the Tamkohi Raj is an ancestral impartible estate, succession to which is governed by a special family custom of lineal primogeniture and rule of survivorship, subject to the right of junior members to receive maintenance. The parties are governed by the Mitakshara school of Hindu law. The last male holder of the estate was Raja Indrajit Pratap Bahadur Sahi who died on 12-6-1947. Bhagwati Prasad Singh, plaintiff 1 is his sister's son, Jitendra Bahadur Sahi, defendant 1 is the grandson of the full-brother of the father of the last male holder. There is a competition between the two as to which of them is entitled in law to succeed to the estate in dispute. According to the rule of lineal primogeniture, Chaterpati Pratap Bahadur Sahi, father of defendant 1, being the eldest male member of the seniormost line of the family of Raja Indrajit at the time of the latter's death was entitled to succeed to the Tamkohi estate. Plaintiff 1 claimed this estate substantially on two main grounds firstly, that there was a severance of the joint status, and the family of defendant 1 had separated, with the result that the Tamkohi estate constituted a separate property of Raja Indrajit, the last male holder, and, secondly, that before his death he had conferred on his wife Jagdishwari Kuer by a will a widow's estate, which, it was contended, had the effect of terminating the joint status and destroying the rule of lineal primogeniture and survivorship, defeating thereby the rights of all the members of the junior branch. The plaintiff's case may be stated as follows: Kuer Sarabjit Pratap Bahadur Sahi, grandfather of defendant 1, had separated from Raja Indrajit and the entire properties constituted the separate property of the said Raja. Raja Indrajit had held the estate as his separate property. Alternatively, it is averred that the holder of the impartible estate had unfettered right of disposal over the Tomkohi estate, and, in exercise of this right, he executed on 15-12-1939, a registered will in favour of his wife Jagdishwari Kuer creating in her favour a Hindu widow's estate. By the said will, he also gave her authority to adopt which, however, was never exercised. The plaintiffs assert that by reason of the grant of a Hindu widow's estate to Rani Jagdishwari Kuer the whole estate vested in her and ceased to be joint family property, with the result that the junior members were disinherited, since there was no family property over which the rule of survivorship could operate. About eight years after the will, he died issueless on 12.6-1947, leaving him surviving his widow Jagdishwari Kuer, his mother Maharani Padam Kuer, his sister's son Bagwati (plaintiff 1) and his nearest agnate defendant 1. Jagdishwari Kuer, his widow, entered into possession of his estate, without taking any probate of the will and died on 15-10-1950, and on her death the estate devolved by the rule of inheritance on the mother of the last male holder, Maharani Padam Kuer, his next heir, who obtained from the High Court letters of administration on 18-3-1952 and died a little more than a year after on 18-5-1953. On her death, the estate devolved upon Bhagwati Prasad Singh who, being his sister's son was by virtue of the Hindu Law of Inheritance (Amendment) Act 2 of 1929, the preferential heir. The present suit was commenced by Maharani Padam Kuer and Bhagwati Prasad Singh. During the pendency of the suit Maharani Padam Kuer died on 18-5-1953, and her name was expunged. The present plaintiff 2 is a transferee of the properties set out in Schedule 6 to the plaint and was subsequently added as a party. The properties in suit consist of the Tamkohi estate proper, the self-acquired properties of the last holder and properties endowed by him. Bhagwati Prasad Singh claims all these properties as heir to Raja Indrajit. The plaintiffs claimed the following reliefs:

(3.) The learned Subordinate Judge negatived all the contentions raised on behalf of the plaintiffs and dismissed the suit. He held that there was no separation between the late Raja Indrajit and Kuer Sarabjit, that the estate created by the will of the Raja in favour of his widow Was a life estate & not a Hindu widow's estate, that even if widow's estate was conferred upon her, it had not the effect of breaking the line of succession, that the properties set out in Schedule 2 to the plaint devolved virtue of the custom on defendant 1 by survivorship and that similarly he also got the Bhumidar rights in the properties mentioned In Schedules 7 and 8 by rule of survivorship. He held further that Act 2 of 1929 did not apply as Raja Indrajit because of his making a will before his death could not be said to have died intestate.