RICHARD ROSS SKINNER; THOMAS WILLIAM SKINNER Vs. DURGA PRASAD AND THOMAS WILLIAM SKINNER AND ANR; DURGA PRASAD

JUDGEMENT

(1.) These three appeals arise out of two suits which were brought in the Court of the Subordinate Judge of Meerut, one by Richard Ross Skinner against one Durga Prasad and Thomas William Skinner and the other by Thomas William Skinner against Durga Prasad to recover possession of the village of Sherpur in the district of Bulandshahar and for mesne profits; both of which suits were dismissed. Appeal No. 106 is an appeal by Thomas William Skinner in the suit brought by Richard Ross Skinner against the finding of the lower Court that he is not a legitimate son of the late Thomas Brown Skinner, who was the father of himself and brother of Richard Ross Skinner. Appeal No. 107 is an appeal by the same appellant in the suit which was instituted by him against the same finding, and also against the decision of the lower Court upon the construction of the will of the late Thomas Skinner, grandfather of the appellant. Appeal No. 123 is an appeal by Richard Ross Skinner in the suit instituted by him against the decision of the Court below holding that Thomas Brown Skinner took an absolute estate in the zamindari property of the testator, Thomas Skinner. The three appeals have been heard together, and one judgment will govern all.

(2.) Two questions, and two questions only, arise in the case. One is as to the true construction of the will of the late Thomas Skinner, dated the 22 October, 1864; and the other is the question of the legitimacy of Thomas William Skinner.

(3.) The founder of the family was Colonel James Skinner, C.B., an Indian soldier of fortune, who had for military services obtained from the East India Company in the beginning of the last century a grant of a largo estate situate in the Bulandshahr District in the North-Western Provinces. The origin of the family is obscure. It appears from a suit which was instituted over thirty years ago to establish the will of Major James Skinner, an illegitimate son of Colonel Skinner, that it was then alleged, and there was some proof, that Colonel Skinner was illegitimate, being probably the child of a native woman by a European father. That case went on appeal to their Lordships of the Privy Council, and it is to be found reported in 13 Moore's Indian Appeals, p. 277, and is entitled Musammat Fanny Barlow V/s. Sophia Eveline Orde. In the course of his judgment in that appeal Lord Westbury observes of the origin of Colonel Skinner as follows: His origin is unknown; being alleviate he belonged to no family, and all that can be collected is that he was probably a soldier of fortune who rose by his courage and military skill to some distinction in the service of the East India Company." The testator in the present case, Thomas Skinner, is a son of Colonel James Skinner. He was a resident of Bilaspur in the Bulandshahr district, and at the time of his death, which occurred on the 9 of November 1864, was possessed of immovable property of considerable extent and value. The testator had three sons and four daughters by his wife Eliza Ann skinner, of whom Thomas Brown Skinner was the elder son and Richard Ross Skinner the second son. It appears that Thomas Brown Skinner was born before the marriage of his parents, and so was illegitimate. By his will, which is divided into seven paragraphs, Thomas skinner provided for the payment of his debts and an annuity for his wife, and also allowances for his children, and then as to his zamindari he gave the following directions in the fourth and fifth paragraphs, namely: "that my private zamindari, presented to me by Government as a repaid for services rendered during the rebellion of 1857, as well as all villages, houses and other property added by me from time to time to the original grant, may at my demise descend to my eldest son Thomas Brown Skinner and to his lawful male children according to the law of inheritance. In the event of my eldest son Thomas Brown Skinner dying without lawful male children, the above- mentioned private zamindari, et cetra, shall descend to my next male heir, and should all my sons die without lawful male children, the zamindari, et cetra. shall descend to my female children, or, in the event of their death to the female children born in wedlock of my sons in succession." The will was executed on the 22 October, 1864, that is, 18 days before the testator's death. After his death his son Thomas Brown Skinner succeeded to the property, but he did not enjoy it long. He appears to have been of extravagant tastes and soon became immersed in debt. In execution of a simple money decree obtained against him by Durga Prasad his interest in the property in dispute in these appeals was sold and purchased by Durga Prasad. It is contended on behalf of the latter that upon the true construction of the will of Thomas Skinner his son Thomas Brown Skinner acquired an absolute estate in the property, and that he (Durga Prasad) is entitled now by virtue of his purchase to an absolute estate. Thomas William Skinner, alleging that he is the legitimate son of Thomas Brown Skinner, contends that his father had merely a life estate in the property and that upon his death the property devolved upon him. Richard Ross Skinner also supports the contention of Thomas William Skinner that his father had only a life estate, but he alleges that Thomas Brown Skinner is illegitimate, and consequently is not entitled to the estate, and he claims it as Being the eldest legitimate son.