BAGESHAR RAI Vs. MSTMAHADEI

JUDGEMENT

(1.) IN the suit out of which this appeal arises Mst. Mahadei claimed certain property as the daughter of one Bam Din Rai, alleged to have died as a separated Hindu. There were a number of defendants impleaded but the suit was contested only by one defendant, viz., Bageshar Rai He, we understand, was a half brother of Earn Din Rai, the two being the sons of one Jai Narain Rai, deceased, by different wives. IN Bageshar Rai's written statement certain defences were set up which all the Courts up to the present stage have found to have been (sic) defences. Musammat Mahadei wss put to proof of the fact that she was the daughter of Ram Din Rai and the finding is that she has established this fact. It was also pleaded that Bageshar Rai was joint with Ram Din Rai at the time of the latter's death. The finding in favour of the plaintiff on this point is no longer challenged. It so happened, however, that as part of her evidence on the issue of jointness or separation the plaintiff put in a certain written agreement of the 5 of March 1902. We find that this agreement was of the nature of a family settlement between a number of persons, members of the same family, who having quarrelled amongst themselves about their rights in certain property desired to settle all disputes between them and to divide the property by partition amongst all of them. There were, if we may so express it, three groups of executants. One of these groups consisted of Jai Narain Rai and his two sons, Ram Din Rai and Bageshar Rai, One effect of the agreement was to assign certain property separately to Ram Din Rai and to Bageshar Rai. It is, the property seperately take by Ram Din Rai under this agreement which is in issue in the present suit. There were three other clauses which have been set forth in the judgment now under appeal. When this document was put in evidence in the Trial Court a new contention was founded upon it by the defendant Bageshar Rai. This is dealt with in the judgment of the Trial Court, though the learned Subordinate Judge remarks that the contention was raised at a very late stage. IN effect this contention was that, by one of the clauses in this agreement of the 5 of March 1902, Bageshar Rai was entitled to succeed to the seperate estate taken by Ram Din Rai under the agreement itself, to the exclusion of the plaintiff Mst. Mahadei. The Trial Court having repelled this contention and decreed the plaintiffs suit, Bageshar Rai, in his memorandum of appeal to the District Judge, put this contention in the forefront of his pleading, though we regret to notice that be again raised the two defences which have been found to be false. The learned District Judge came to the conclusion that Bageshar Rai's plea based upon the deed of the 5 of March 1902 must prevail. It is evident that he arrived at this decision which some reluctance. He says that the defendant Bageshar Rai had purposely endeavoured to keep back this deed of the 5 of March 1902 because it was decisive against him on the issue of jointness or separation. He marked his sense of the improper manner in which the suit had been defended by depriving Bageshar Rai of his costs in both Courts. At the same time he felt compelled to dismiss the plaintiff's suit, holding that, so far as Ram Din Rai was concerned, his execution of the agreement of the 5 of March 1902 amounted to a bequest in favour of Bageshar Rai of the property taken by himself under that deed, in the event of Bageshar Rai surviving him. The plaintiff came to this Court in second appeal and a learned Judge of this Court this allowed this appeal and has once more decreed the plaintiff's suit. As of understand the decision before us, the learned Judge of, this Court holds that, although the provisions of the deed of March the 5 1902 were correctly interpreted by the learned District Judge and would confer according to their tenor a right of inheritances upon Bageshar Rai in the property in suit to the exclusion of MstMahadei, or any other daughter of Ram Din Rai, nevertheless the agreement was inoperative as a testamentary disposition of property because it offended against the principles laid down in the Tagore case-vide Jotandra Mohun Tagore V. Ganondra Mohun Tagore 18 W.R. 359 : 9 B.L.R. 377 : I.A. Sup. Val. 47 : 2 Suth. P.C.J. 692 : 3 Sar. P.C.J. 82 (P.C.), and further affirmed and applied by their Lordships of the Privy Council in a later case Puma Sashi Bhattacharji V/s. Kalidhan Bai Chowdhury, 11 INd. Cas. 412 : 8 A.L.J. 681 : 15 C.W.N. 693 : 13 Bom. L.R. 451 : 14 C.L.J. 1 : (1911) 2 M.W.N. 403 : 38 C. 603 : 10 M.L.T. 361 : 21 M.L.J. 1119 (P.C.). The appeal before us under the Letters Patent is by the defendant There are one or two subsidiary matters which we must clear out of the way. We have taken note of the manner in which the defence based upon the agreement of the 5 of March 1902 was introduced in the Trial Court We agree with the learned District Judge that the conduct of the suit by the defendant Bageshar Rai was reprehensible and that, in any event, the Court is bound to mark its sense of the nature of his conduct when it comes to pass its order in the matter of costs. At the same time, we are bound to take account of the defence based upon the agreement of the 5 of March 1902 and that defence must prevail if it is well- founded in law, that is to say, if the provisions of the agreement are not repugnant to some such principle of law as the learned Judge of this Court conceived to be applicable to the same. IN the second place, it has been contended that the terms of the agreement itself do not amount to a bequest by Ram Din Rai in favour of Bageshar Rai, or by Bageshar Rai in favour of Earn Din Rai, whichever should be the survivor. This contention turns in part upon the interpretation of the word "lawalad," used in a certain paragraph of the agreement. The Courts below-and also the learned Judge of this Court have held that in this particular context the expression lawalad can only mean "without male issue." We have been asked to reconsider that decision, but in view of the terms of the document as a whole it seems to us clearly correct. As regards the pricise terms of the clause prescribing the manner in which the property dealt with under this deed of agreement is to descend upon the death of the several executants, we are not bound to consider anything more than the application of those terms to the particular group of executants consisting of Jai Narain Rai and his two sons. So considering it, we have no doubt whatever that each of these three executants did agree, and intended to agree, that whichever of them died first the property taken by him under the deed should devolve in equal shares upon the other two, and that the last survivor of the three should inherit whatever was left in the hands of his father or brother, as the case might be. This being our interpretation of the agrement, we on which the learned Judge of this Court differed from the District Judge, viz., whether these terms are enforcible. The principle laid down in the Tagore Will case as applied to the facts now before us was in substance this. It was perfectly open to Jai Narain Rai, Earn Din Rai and Bageshar Rai, a Hindu father and his two sons--when partitioning certain prop-arty amongst themselves, to come to an agreement that on the death of any one of them his share should pass to the other two and, after the deaths of any two of them, the right ofinheritance should devolve on the last survivor. What it was not competent for them to do was to lay down a rule of inheritance for the property in the hands of this last survivor, in derogation of the ordinary rules of Hindu law. There is nothing contrary to this in the second Privy Council case relied upon by the learned Judge of this Court. Their Lardships were there dealing with a document executed by two brothers. This document purported to prescribe a rule of succession for their property after the death of either or both of them, One of the two brothers having died, the property devolved upon his son. It would no doubt have done so under the ordinary Hindu Law, but it seems to have been taken for granted that the son in question took under the terms of the Will or agreement executed by his father and his uncle. The question for determination before the Court in that case was the devolution of the property after the death of the son who had so taken under the terms of the said agreement. It was held that he had not taken the property subject to any special rule of devolution laid down in the agreement, but that, on the contrary, after his death the property descended under the ordinary rules of Hindu Law. That case would be directly in point if we were dealing with a dispute as to the succession to his property now in suit upon the death of Bageshar Rai. IN our opinion it does not apply to the question actually in issue "before us. On the other hand, we have been referred to a case decided by a Bench of this Court which is almost directly in point--that of Kantee Chandra Mukerji V/s. Ali Nabi 9 INd. Cas. 953 : 33 a. 414 : 8 A.L.J. 199. The learned Judges who decided that case enforced as between the signatories to the same, who were Hindu brothers, a family settlement providing for the devolution of signatories almost exactly similar to that embodied in the agreement of the 5 of March 1902. IN our opinion, therefore, the learned Judge of this Court was in error in reversing the decision of the lower Appellate Court on the ground which he took. Atlowing this appeal, we set aside the judgment of the lesrned Judge of this Court and restore that of the lower Appellate Court dismissing the plaintiff's suit. For reasons which we have sufficiently indicated, we leave the parties to bear their own costs throughout.