JAMNA PRASAD Vs. MTDURGA DEI

JUDGEMENT

(1.) The suit out of which this appeal has arisen was instituted by Mt. Durga Dei, daughter of Babu Mahadeo Prasad, against Mt. Basanta Koer and Mt. Bhagwanta Koer, widows of Babu Mahadeo Prasad, defendants first party, and against the sons and grandsons of Babu Baldeo Prasad (the brother of Babu Mahadeo Prasad), defendants second party. The reliefs which the plaintiff claimed were for a declaration that the document, dated 31 May 1924, executed by Mts. Bhagwanta Koer, Basanta Koer and Jamuna Prasad, was null and void and that the defendants second party had not acquired any right under it to the estate of Mahadeo Prasad, for the appointment of a receiver of the entire property left by Mahadeo Prasad and for an order directing the defendants to deposit in Court or in some bank the amount in cash left by Babu Mahadeo Prasad or otherwise realized; and as an alternative to the relief regarding the appointment of a receiver the plaintiff prayed for a perpetual injunction against the defendants first party to the effect that they should not realize those debts due to Babu Mahadeo Prasad the realization of which might not be necessary and that they should realize those debts the realization of which might be necessary and doposit them in Court or in some bank and appropriate the interest thereof. It is necessary at this stage to append an admitted pedigree which will be useful for the elucidation of the pleadings of the parties:

(2.) The plaintiffs case was that Lala Bansidhar was the common ancestor of the parties, but he was possessed of no property; that his sons were separate ; that Behari Lal was possessed of some small property and Narain Das had considerable moveable and immovable property; while the other sons of Bansidhar had no property worth the name; that on 26 March 1887, the aforesaid Behari Lal and Narain Das bequeathed their entire moveable and immovable property by means of a will to their nephews, Mahadeo Prasad and Baldeo Prasad; that later on, on 16 May 1890, Baldeo Prasad, after having relinquished all his claims in the properties possessed by himself and his brother Mahadeo Prasad on receiving a sum of Rs. 1,00,000, lived as a separated member along with his son Bisheshar Prasad, and the document of 1890 for the cancellation of the said document; it was further pleaded that Mahadeo Prasad after 1890 acquired considerable cash and property by his personal efforts and died on 3 June 1909, as a separated Hindu possessed of a great deal of property and his heirs at the time of his death were his widows with limited rights and the plaintiff as the next qualified reversioner, that after the death of Mahadeo Prasad his widows came under the influence of Bisheshar Prasad and adopted various methods for depriving the plaintiff of her just rights in the reversion but were all along unsuccessful, and therefore on 31 May 1924, a document was executed by which seven annas of the entire property left by Mahadeo Prasad was given to Jamuna Prasad and nine annas were retained by the two widows. The plaintiff therefore prayed that, as this document was highly prejudicial to her interests, it might be cancelled and as the widows had been guilty of gross acts of waste and mis relations between the two brothers became strained and Baldeo Prasad ultimately filed a suit for the cancellation of the document of 16 May 1890, but he was unsuccessful up to the High Court and no claim was made on behalf of Besheshar Prasad, the only son of Baldeo Prasad, who was in existence at the time of the execution of the management a receiver should be appointed of the property and the widows be directed to render accounts of the moveable property left by Mahadeo Prasad.

(3.) The main contesting defendants were defendants of the second party, and their case was that Lala Bansidhar died leaving considerable property; and his sons acquired while they were joint still greater properties and therefore the will of 26 March 1877 was invalid because no member of a joint Hindu family was entitled to transfer joint family property by means of a will; that the said document was not in reality a will but was a device for the management of the property and the maintenance of the estate; that Mahadeo Prasad and Baldeo Prasad entered into possession of the said property not under the will but as survivors of a joint Hindu family and therefore the document of 16 May 1890 was ineffectual inasmuch as Bisheshar Prasad, a son of Baldeo Prasad was in existence at that time, and Baldeo Prasad had no right to barter away the rights of Bisheshar Prasad in a property worth about twenty lacs of rupees for a small pittance. Moreover, Baldeo Prasad executed the document of 1890 as a result of undue influence, misrepresentation and misconception of his rights and the rights of his minor son. The defendants pleaded that they had lived all along with Mahadco Prasad as members of a joint Hindu family and had been constantly benefited by the family property and were in possession of the property as survivors; they further pleaded that after the death of Mahadeo Prasad, several legal proceedings were instituted, bringing about diverse disputes in the family and those disputes were set at rest by the document of 31 May 1924, and therefore that document was in the nature of a family settlement and was consequently binding upon the plaintiff. The two widows of Mahadeo Prasad denied the allegations of waste made against them.