PRANJIVAN HARGOVAN Vs. BAI BHIKHI

JUDGEMENT

(1.) The plaintiff in this case is the father's sister of one Jamnadas who died in 1915. Jamnadas and his uncle Khusal had been the members of a joint Hindu family. Khushal predeceased Jamnadas leaving a widow Ganga. On the death of Jamnadas, the plaintiff claimed to succeed to his estate. Her claim being disputed, she had to file this suit against defendants Nos. 1 to 5 as the trustees under the will left by Khusal, and various other defendants as heirs of a deceased trustee.

(2.) The only question now in dispute is whether Ganga lost her right by her remarriage to take the place of her husband under the decision in Lallubhai Bapubhai V/s. Mankuvarbai (1876) I.L.R. 2 Bom. 388 and consequently her right to succeed to the estate of Jamnadas in priority to the plaintiff. The plaintiff's suit has been decreed in the lower Courts and an appeal to this Court was dismissed by Heaton J. This is a Letters Patent appeal against that decision.

(3.) In the trial Court the only contesting defendants were defendants Nos. 1-4. The first issue was whether all the properties mentioned in the will were not the joint family properties of Khushal and his nephew Jamnadas. The second, whether Khushal was competent to make the will. It was found that the properties were joint, and it followed that Khushal was not competent to dispose of them by will. But the defendants disputed the plaintiff's right to succeed, and contended that Bai Divali, the mother's sister, was the nearest heir to Jamnadas and in her absence one Damodar. Ganga was not mentioned in the pleadings and her name was only added as a preferential heir at the instance of the defendants after the hearing had commenced. The first defendant died pending the suit and his heirs were added. Against the decree of the trial Court one of the heirs of defendant No. 1, and defendants Nos. 2 and 3 appealed, and they have contested the appeals throughout. It is difficult to see what interest they had in doing so, after the Court had decided in favour of the plaintiff, and none of the persons mentioned by the defendants as preferential heirs had chosen to question that decision.