KUMAR BHAGABAT PERSHAD Vs. MURARI LAL

JUDGEMENT

(1.) The suit, out of which this appeal arises, was brought by Kumar Bhagabat Prasad as reversioner to recover certain family ancestral properties after the death of the last female proprietor. Kumar Hira Lal had two sons, Baij Bahadur and Sukhraj Bahadur. Baij Bahadur died on the 18 November 1866 having, it is alleged, executed on the 6 October 1866 the Will, Exhibit C. Prior to the execution of this Will, Baij Bahadur and his brother Sukhraj Bahadur are alleged to have separated and to have ceased to form a joint family. By that Will, power to adopt was given to Baij Bahadur's widow Jarina Bibee and, on the 1 December 1863, it is alleged that she adopted one Sadho Narain as her husband's son. Sadho Narain died a few days after on the 16 December 1868 and it is alleged that thereafter, on the 17th April 1873, Jarina Bibi adopted Murari Lal, the present defendant, as the adopted son of her husband, and changed his name to Kumar Jairaj. It is alleged that, since that date, Murari Lal, the defendant, has been in possession of the properties, left by Baij Bahadur, as his adopted son. On the 28 October 1903 Jarina Bibi died.

(2.) Sukhraj Bahadur died on the 9 May 1884 leaving him surviving his widow Musammat Dulhari Bibi and a son Kumar Bhagabat Prasad, born in August 1876. Bhagabat Prasad was the original plaintiff in the present suit, which was instituted on the 2 August, 1906. Bhagabat, however. died on the 24 April 1907 and his mother Dulhari Bibi was substituted as the plaintiff in his place on the 8 July 1907.

(3.) After the death of Baij Bahadur, a dispute arose between his widow Jarina Bibi and his brother Sukhraj Bahadur in 1868 Jairna Bibi applied on the 6 June 1868 for a certificate under Act XXVII of 1860 for the collection of the debts due to her deceased husband's estate. In her application, she stated that it was made by her under her right of inheritance and under the Will of her husband dated the 6 October 1866 empowering her to adopt a son. The Will itself appears to have been filed in those proceedings on the 8 June 1868. Sukhraj Bahadur contested that application, denying the genuineness of the Will set up by the lady and alleging that there had been a reunion between the brothers prior to the death of Baij Bahadur. The District Judge granted the application of Jarina Bibi, and, on the 2 September, 1868, directed a certificate to be issued in her favour. The Judge declined to go into the question whether the Will was genuine or not ; but, finding that there had been no re-union between the two brothers antecedent to the death of Baij Bahadur, he held that the lady was entitled to the certificate prayed for, as the heiress of her husband. There was an appeal to the High Court; but, on the 10 April 1869, the appeal was dismissed, the High Court holding that the defendant Sukhraj had failed to prove that there had been any re-union and that, therefore, the District Judge was right in granting the certificate. On the 8 December 1873, Sukhraj Bahadur instituted a suit against Jarina Bibi and Kumar Jairaj alleging that there had been a re-union between Baij Bahadur and himself prior to the execution of the alleged Will, that the Will produced was a fabricated document and that, even if the Will was genuine, it only authorized the widow Jarina Bibee to take one son in adoption, and not two, and therefore, the alleged adoption of Kumar Jairaj alias Murari Lal, was invalid. Further, it was contended that the adoption was bad in law as Murari Lal was an orphan at the time and his brother had no legal power to give him in adoption. In that suit, the plaintiff asked for a declaration that the adoption was invalid and for possession of the estate of the deceased Baij Bahadur. The suit was decided on the 5 October 1874. The Subordinate Judge held, first, that the plaintiff had failed to prove that there was any re-union between the brothers, and, secondly, that the plaintiff was not entitled to a declaration that the Will was false because his suit was brought more than three years after the date of the production of the Will, and was, therefore, barred under Art. 93 of Schedule II of Act IX of 1871. He, however, went into the question whether the Will was a genuine document or not and held that, on the evidence, it was proved to be the genuine Will of Baij Bahadur. Thirdly, he held that the plaintiff was entitled to a declaration that the adoption of Murari Lal alias Kumar Jairaj was invalid, and holding that the adoption was bad in law because Murari Lal was an orphan and was given in adoption, by his brother, he gave the plaintiff a declaration that the adoption was invalid. Jarina Bibi applied for a review on the 2 December, 1874 but her application was rejected. Both sides afterwards appealed to the High Court and the appeals were disposed of on the 13 September 1876. The High Court affirmed the finding of the Subordinate Judge that there was no re-union between the brothers before the death of Baij Bahadur. The learned Judges then considered the question whether the plaintiff was in that suit entitled to a declaration that the adoption of Murari Lal was invalid under the Hindu Law and whether the Subordinate Judge was right in giving the plaintiff a declaration that the adoption was invalid. They referred to the case of Nogendra Chandra Mitira V/s. Kishen Soondery Dossee 19 W.R. 133 : 2 B.L.R.A.C. 279 : 11 W.R 190, in which their Lordships of the Privy Council had laid down that it was not a matter of absolute right to obtain a declaratory decree. They then pointed out that there was no charge against the, widow of alienation or waste, no allegation of any present wrong, that Sukhraj was at the very best only a presumptive heir at that time and that his right was not only a future right but also a contingent right. In these circumstances, they were of opinion that the plaintiff was not entitled to ask for any declaration with reference to the Will of the late Baij Bahadur or the adoption of Murari Lal.