MUNSHI INDAR SAHAI Vs. KUNWAR SHIAM BAHADUR

JUDGEMENT

(1.) The appellant Munshi Indar Sahai was, with one Madan Mohan Lal deceased, a defendant in a suit which was brought in 1904 in the Court of the Subordinate Judge of Bareilly and related to shares in Mauza Partapur, two other villages, and a house and shops in the city of Bareilly. The appellant was also sole defendant in a suit which was brought in 1905 against him, as manager of a temple, in the Court of the Subordinate Judge of Bareilly, and related to a moiety of Mauza Nawadia Bahmanpuri. The suits were tried by different Subordinate Judges. The suit of 1904 was dismissed by the Subordinate Judge, and on appeal his decision was set aside by the High Court at Allahabad, and the High Court gave the plaintiffs in that suit a decree. From that decree of the High Court one of these consolidated appeals has been brought. In the suit of 1905, the Subordinate Judge gave the plaintiffs in that suit a decree which was affirmed by the decree of the High Court on appeal. From the latter decree of the High Court the other of these consolidated appeals has been brought.

(2.) The common ancestor of the plaintiffs-respondents and the defendant- appellant was Munshi Jiwan Sahai. Jiwan Sahai had three sons, namely, Ram Sahai, who died in 1888; Tirbeni Sahai, who died childless in 1883, leaving a widow Musammat Lado, who died in 1904 ; and Indar Sahai, who, is the defendant-appellant. From Ram Sahai the plaintiffs-respondents descended in the male line. Jiwan Sahai died on the the September 1893. Jiwan Sahai and his sons Ram Sahai, Tirbeni Sahai, and Indar Sahai had constituted a joint Hindu family governed by the law of the Mitakshara, and at the time of the death of Jiwan Sahai, he, his surviving son Indar Sahai, and the sons and grandsons of Ram Sahai who were then living, constituted the joint Hindu family.

(3.) On the 15th-May 1893, Jiwan Sahai made a will by which he purported to give to Musammat Lado, the widow of his deceased son, Tirbeni Sahai, the villages to which the suits respectively relate, and an interest for her life in the house and shops in the city of Bareilly, with a direction that Musammat Lado should dedicate Mauza Nawadia Bahmanpuri to the Thakurdwara of the God Krishna in Mohalla Darzi Chauk. In one of the suits the Subordinate Judge found that Jiwan Sahai had not made that will, but the High Court found that Jiwan Sahai had in fact made the will. With that finding of the High Court their Lordships agree. The validity of Jiwan Sahai s will has been, however, on other grounds contested. On behalf of the plaintiffs-respondents it has been contended that the property dealt with by the will was the property of the joint Hindu family, which Jiwan Sahai had no power to dispose of by his will, and that the will was not made by Jiwan Sahai with the consent of the other members of the joint family, and was consequently inoperative. On behalf of the defendant-appellant Indar Sahai, it has been contended that the villages Nawadia Bahmanpuri and Partapur were self-acquired property of Jiwan Sahai, and never became the property of the joint Hindu family, and further that the will was made by Jiwan Sahai with the consent of the other members of the joint family. It is now common ground that the property which Jiwan Sahai purported to dispose of by his will other than the villages Nawadia Bahmanpuri and Partapur was the property of the joint family.