GOPAL DAS Vs. THAKURJI

JUDGEMENT

(1.) This is an appeal by the plaintiffs from a decree of the High Court at Allahabad dated 3 October 1935, affirming a decree of 7 November 1930, by which the Subordinate Judge at Benares dismissed the suit. The plaintiffs claim as reversioners of one Parshotam Das who died in 1883, a Hindu governed by the Benares school of law. Harish Chandra, whose name stands at the head of the pedigree table, died in 1856 leaving a widow, whose name was Manki, three daughters (one born posthumously), but no son. In 1860 the widow adopted Parshotam Das, then about five years old. When he died, in 1883 he left a widow Bindeshri and two daughters Mohan and Sohan. Manki Bahu his adoptive mother survived him and died in 1893. His daughter Sohan was married to Mukandi Lal and the plaintiffs Gopal Das and Baldeo Das are her sons. Thus, when Parshotam Das died Bindeshri inherited his property. When she died in 1916 her daughters succeeded, but in 1926 they executed a deed of relinquishment in favour of the plaintiffs who thus make title as reversioners of Parshotam Das to any estate which he may have possessed at his death.

(2.) The defendants to the suit, in addition to Mohan Bibi and Sohan Bibi, who are only joined pro forma, are a certain idol and its managers. The plaint lays claim to all the property left by Parshotam Das and sets forth the particulars thereof in eight schedules or lists. List 8 may be neglected since it merely mentions certain articles as in the plaintiffs' own possession. Lists 6 and 7 mention properties claimed as accretions to the estate of Parshotam Das but this claim is now abandoned. Lists 4 and 5 comprise moveables as to which it is clear and is now admitted that the plaintiffs are barred by limitation. In the result the property now in dispute may be shortly described as consisting: firstly, of the proprietary interest in a village called Sheodasa in the Benares district together with certain incidental rights as mortgagees of inferior interests therein (lists 1 and 2) : secondly, of a house in the city of Benares which used to be the family dwelling house of Harish Chandra and is called the bari haveli, together with an orchard adjacent thereto (list 3). Another house, called the chhoti haveli, is also entered in list 8 as having belonged to Parshotam Das, but this is not a subject of dispute as it has never been in the possession of the defendant idol or its managers and is not claimed by them. These properties at Sheodasa and Benares belonged originally to Harish Chandra and the plaintiffs' claim is that Parshotam Das inherited them from him. The defendant idol has two lines of defence to the claim. First, that pleaded in para. 15 of the written statement: "It is denied that the property in dispute or any part thereof was left by Babu Parshotam Das." Secondly, that by a compromise dated 17 May 1896, and made by Bindeshri in a litigation between her and Harish Chandra's daughters, in consideration of her getting the chhoti haveli and Rs. 20,000 Government promissory notes all claim to the Sheodasa property, the bari haveli and the orchard was given up by Bindeshri on behalf of her husband's estate and so as to bind his reversioners. This compromise was referred to in the plaint, which attacked it as having no validity against the plaintiffs. From petitions made by Manki Bahu to the Agent of the Governor-General in the years 1860 and 1871, she is seen to have claimed from the first that the adoption of Parshotam Das was the subject of special stipulation to the effect that she should retain all her rights in her late husband's property and even that its disposition after her death should be within her control. Such stipulations may be assumed to have been invalid as against a minor but Parshotam Das could when he came of age assent to any stipulation made by her or make any new bargain with her. On 9 December 1871, Manki Bahu executed a will which was signed by Parshotam Das, then about 16 years of age, in token that he accepted it. It was registered by her on the 22nd of that month. The importance of its provisions does not arise from their ever having taken effect on her death, but partly from its recitals and partly from the reference to them made in a receipt of 1881 hereinafter mentioned and in a later will of 1893 made by the same testatrix; partly also from the light it throws upon Manki's claims and conduct. In this will of 1871 Manki Bahu expresses some disappointment with Parshotam Das, and proceeds to declare what is to happen to her husband's estate after her death. She treats it in effect as if it were her own absolute property. She wanted Government to undertake its guardianship and to appoint a manager, who with Parshotam Das and one other were to form a committee. In a paragraph numbered 3 she recited "I have made a temple of Thakurji in my own dwelling house," mentioning the bari haveli and its boundaries and adding "the orchard which is adjacent to the said kothi towards the north will also remain in the name of Thakurji." She fixed various sums for the expenses of the worship. In para. 4 she proceeded : I give to Babui Parshotam Das, the adopted son, two promissory notes for Rs. 12,000 out of the notes for Rs. 63,200 detailed in this will together with a pucca house adjoining my kothi towards the north. After my death he should live and eat in it with his wife and children. He and his children will have power to enjoy the principal and interest of the said notes. Except this he and his descendants and heirs shall have no right to or claim for any estate and moveable and immovable properties after my death.

(3.) She also gave to each of her three daughters promissory notes for Rs. 8000 and provided that they should have no right or claim to anything more. The interest on the remaining Government promissory notes for Rs. 27,200 she directed to be expended in giving various small monthly sums to relatives and servants, on the worship of the thakur, on repairs, etc. As to the village of Sheodasa, she provides : The profits of mouza Sheodasa . . . which amount to Rs. 13,000-14-0, will always be exclusively spent on account of the worship of Thakurji and Shivaji, and the food for Brahmans and other such acts. The will concludes with a statement that she could alter or cancel its provisions in her lifetime and that so long as she lived she would remain in possession of the entire estate of her husband as before. After the execution of this will an inscription in stone was put over the gate of the bari haveli. It bears date 19 October 1878, and is in the form of a declaration by Manki Bahu, referring to her will to the effect that the dwelling house and grove have been dedicated as a temple of Sri Thakurji. It states also that the deity has been entered as proprietor of village Sheodasa, the profits from which are to meet the expenses of worship, food, deity offerings, etc. Exhibit KK, which was endorsed by the trial Judge as "admitted against plaintiff" is a certified copy of a registered instrument which purports to be a receipt dated 29 March 1881 signed by Parshotam Das. The Registrar's endorsements are to the effect that it was presented for registration on the same day by Parshotam Das, who admitted execution and signed his name as the person presenting it and again as the person who had executed it. Two persons signed as witnesses to the execution of the document and two as witnesses to the registration. The body of the document is as follows : I, Babu Parshotam Das, adopted son of Mt. Manki Bahu, widow of Babu Harish Chand, deceased, resident of mohalla Bula Nala in the city of Benares, do declare as follows : After the death of her husband, Babu Harish Chand, Mt. Manki Bahu adopted me, the executant, according to the wishes of the said Babu, her deceased husband. After performing the ceremonies relating to my adoption, she, under a will, dated 2nd and registered on 23 December, 1871, made an arrangement in respect of the whole of her property ('imlak') with my consent. So far as I am concerned the said will provides that Rs. 12,000 in notes and a house adjoining the 'kothi' on the north, have been given away to me, the executant and adopted son, and that, besides the said property, I, the adopted son, or my descendants or heirs shall have no right or claim to the 'imlak,' i. e., the moveable and immovable properties comprised in the will. Accordingly, in fulfilment of the conditions laid down in the said will, I, the executant, along with my wife, have, with effect from the date of the execution of the will, been in separate possession of the 'pucca haveli' adjoining the 'kothi' on the north, and receiving always from Babu Saheba and bringing to our use the interest on the sum of Rs. 12,000 in notes. Now, I, the executant, stand in need of celebrating the marriage of my daughter. I have, therefore, taken from Babu Saheba and brought to my use and enjoyment a sum of Rs. 1000 in cash out of the notes for Rs. 12,000, entered in the will as payable to me. Now there remain notes of Rs. 11,000. I shall always take the interest on the said sum and whenever I shall in any way stand in need of money I shall take the said notes or cash from Babu Saheba. I have, therefore, executed these few presents by way of a receipt, acknowledging payment of Rs. 1000 in cash out of Rs. 12,000, payable to me, so that they may serve as evidence and be of use when needed.