LAKHMI CHAND Vs. MTANANDI

JUDGEMENT

(1.) This and the connected First Appeal No. 341 of 1930 have been filed by the plaintiff and the defendant respectively from the decree of the learned Subordinate Judge of Muzaffarnagar, dated 27 May 1930 in a suit in which the plaintiff had prayed for a declaration that under the will, dated 5 June 1915 executed by Seth Baldeo Sahay and the plaintiff, the defendant had no right left in the properly specified at the foot of the plaint, mentioned in Schedules (A)(B) and (C), nor was she entitled to recover from the plaintiff the amounts of decrees in Suits Nos. 449 of 1920 and 107 of 1926.

(2.) Baldeo Sahay and his younger brother Seth Lachmi Chand were members of a joint Hindu family governed by Mitakshara and owned property of considerable value. During the continuance of the joint tenure, the two brothers executed a document on 5 June 1915. On this date, neither of the two brothers had any male issue. Baldeo Sahay had three sons of his daughter by a predeceased wife, a second wife Mt. Anandi and an unmarried daughter by her named Mt. Gomi. Lachmi Chand had five daughters. Baldeo Sahay died on 10 June 1915. The instrument referred to above provided that on the death of Baldeo Sahay, his widow should have a right to the profits in a moiety of the joint family property with an estate equivalent in some respects to that of a widow of a sonless and separated Hindu but that she should have no right either to the possession or to the partition of the property and that the property was to remain in the possession and management of the surviving brother Lachmi Chand. After the death of Baldeo Sahay, Lachmi Chand had apparently no intention to abide by the terms of the agreement. He got the name of Mt. Anandi recorded in the revenue papers in place of the name of Baldeo Sahay, but he never paid her, her share of the profits; and indeed her share of the profits remains unpaid up till now. Before full three years had elapsed from the date of the agreement, Seth Lachmi Chand brought a suit for its avoidance on the ground that the transaction amounted to a testamentary disposition of joint Hindu family property and could not operate against Lachmi Chand who upon the death of Baldeo Sahay had become the exclusive owner of the entire property by rule of survivorship. This was Suit No. 688 of 1918. This suit failed and Lachmi Chand was unsuccessful all along the line. His claim failed in the trial Court on 18 July 1919. His appeal was dismissed by the High Court on 12 June 1920 and his appeal was dismissed by the Judicial Committee on 15 March 1926 a report of the decision of their Lordships of the Privy Council is to be found in Lakshmi Chand V/s. Anandi AIR 1926 PC 54.

(3.) In the meantime, Mt. Anandi sued Lachmi Chand for profits for the period from 11 June 1915 to 10 June 1920 in the Court of the Subordinate Judge of Meerut. This suit was numbered as 449 of 1920. On the application of Lachmi Chand, the hearing of this suit was stayed during the pendency of his appeal to the High Court and the Privy Council. It was not till 2 March, 1928 that the trial Court passed the final decree in her favour for a sum of Rs. 81,423-12-0. On 4th August 1926, Mt. Anandi instituted a second suit against Lachmi Chand in the Court of the Subordinate Judge of Muzaffarnagar in which she claimed a sum of Rs. 1,04,999-8-6 for her share of the profits for the period from 15 June 1920 to 30 July 1926. This suit was numbered as 107 of 1926. Lachmi Chand did not file his written statement in this case till 5 January 1927. We have looked into his defence. Every objection of law or fact which could suggest inself to human ingenuity was put forward by him. Amongst other pleas, he claimed a set-off for various sums of money aggregating Rs. 98,404-10-9. The hearing of this suit was also stayed on his application upon the ground that he had preferred an appeal to the High Court against the preliminary and the final decrees passed in the first suit for profits.