LAKSHMI CHAND Vs. MUSAMMAT ANANDI

JUDGEMENT

(1.) On the 5 of June, 1915, two brothers, by name Baldeo Sahai and Lakshmi Chand, Bohra Brahmans, were the owners in possession of the whole joint family property. Each had a wife, each had daughters, neither had a son. Baldeo Sahai was ill, and on the 5 of June, 1915, the two brothers executed a document, on which this appeal is based. If on its true construction it is valid by Hindu law, either as a will or as a family settlement, then it is agreed that the claim of Lakshmi Chand, brought as it was against the widow of Baldeo Sahai, must fail.

(2.) In the lower court Lakshmi Chand contended that the document had no legal validity, because on the death of Baldeo Sahai, (which occurred on the 10 of June, 1915,) he, Lakshmi Chand, became thereby the owner of the entire property. Musammat Anandi resisted the claim on the ground that she was in possession of the property in suit by virtue of the document of the 5 of June, 1915. On her behalf it is said that the document, whether legal as a will or not, could not be impeached because it had been executed by Lakshmi Chand to avert a partition upon which Baldeo Sahai had determined a few months previously; and some evidence of a rather shadowy character was given in support of this suggestion. A pleader's clerk testified to procuring the khewats of upwards of 30 villages for the purpose of filing them with the application for partition. Lakshmi Chand agrees that those khewats were obtained, and alleges that the reason was not because of any intended partition but because other zamindars had got like documents under the apprehension that cither as the direct or indirect result of the war the buildings and records might be destroyed. We have remarked upon the absence of the evidence of Mr. Tirbeni Sahai, the pleader, who must certainly have known about the matter, and as he has not been called we are inclined to look with some suspicion on the bare statement of his clerk as to the object with which the khewats were obtained. We are therefore not prepared to bold that there was a bargain between the brothers that if Baldeo Sahai would not proceed with the partition, Lakshmi Chand would execute a document in the terms of the one before us.

(3.) Counsel for the respondent has urged that the document in question is a joint will and that the brothers were competent to make it. It has also been put forward that each brother was apprehensive as to the financial future of his wife in the event of his predeceasing her, and that each wished to secure for his wife (in the event of her becoming a widow) a more certain and generous provision than she would have as the ordinary widow of a deceased member of a joint Hindu family. To secure that object, each gave up his expectancy of outliving the other, with its consequential financial benefit, in consideration of the assured position which the widow of either would obtain under the document. We are of opinion that the respondent is right on both these contentions.