(RAJA YUVRAJ) DATT SINGH Vs. TEJDATT SINGH

JUDGEMENT

(1.) These are two applications under Section 23, Civil P.C., made by Raja Yuvraj Datt Singh and Thakur Bhairon Singh respectively, who are defendants in a suit pendingin the Court of the Subordinate Judge, Aligarh. The suit was brought by the opposite party Madho Singh. The subject-matter of the suit is Oel Estate in, Oudh which belonged to Raja Krishna Dat Singh, who died on 15 December 1932, leaving him surviving his. widow Thakurain Anand Kunwar, who is also a defendant to. the suit, a son Thakur Tej Dut Singh and Yuvraj Singh, one of the applicants before us, who claims to be a son of Ram Dat Singh, a predeceased son of Raja Krishna Dat Singh, and to be entitled to succeed under a will alleged to have been executed by the late Eaja. It is not disputed that Tej Dat Singh is the legitimate son of Raja Krishna Dat Singh but there is controversy between the parties as to whether he is suffering from congenital idiocy.

(2.) The plaintiff Mad ho Singh claims to be an agnate several degrees removed from Raja Krishna Dat Singh and to be entitled to succeed to the estate on the allegation that Tej Dat Singh is excluded from inheritance owing to congenital idiocy, that Yuvraj Dutt Singh is not the legitimate son of Ram Dat Singh, a predeceased son of Krishna Dat Singh, and that the will set up by Yuvraj Dutt Singh and alleged to have been executed by Krishna Dut Singh does not, on a proper construction being placed upon it, confer a title upon him in respect of Oel Estate. It is further alleged by the plaintiff in his plaint that Raja Krishna Dat Singh was not of a sound disposing mind when he is said to have executed the will. As regards Thakurain Anand Kunwar, who in ordinary circumstances would exclude an agnate like the plaintiff, it is alleged by the latter that she relinquished all her rights in the estate of her deceased husband. The suit was instituted on 28th February 1933. No written statements were filed by the defendants before the present applications were made to this Court for the determination of proper forum for the trial of the suit as all the principal parties are residents of Oudh and the entire property in dispute, except a temple and 64 bighas of land which are situate in Aligarh, is in Oudh and within the jurisdiction of the Chief Court at Lucknow.

(3.) The application by Yuvraj Dutt Singh was not preceded by a notice to the plaintiff as contemplated by Section 22, Civil P.C. while that of Bhairon Singh (No. 190 of 1933) was made after a notice to the plaintiff intimating his intention to move this Court for determination as to which of the two Courts, namely, the Chief Court of Oudh on the original side or the subordinate Judge's Court at Aligarh, is the proper forum. A preliminary objection has been taken by the learned Advocate for the plaintiff opposite party that the application of Yuvraj Dutt Singh is not maintainable in view of the requirements of Section 22, Civil P.C. It is pointed out that, according to that section any defendant, after notice to the other parties, may at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court, and the Court to which such application is made, after considering the objections of the other parties (if any) shall determine in which of the several Courts having, jurisdiction the suit shall proceed.