MAGAN LAL Vs. MTKRISHNA BIBI

JUDGEMENT

(1.) This is an appeal from the decree passed by the learned Subordinate Judge, Allahabad, in a suit brought by the plaintiff-respondent, Mt. Krishna Bibi, against the appellant, Magan Lal, the adopted son of her husband Mathura Prasad and herself, for recovery of Rs. 5,000 in terms of her husband's will, dated 2nd July 1915, for determination of her maintenance which is claimed by her at the rate of Rs. 20 per mensem, and for recovery of arrears thereof for two months before the suit. She also claimed a declaration of her right to reside in the house described in Schedule B annexed to the plaint. Her claim to recover certain moveables, mentioned in Schedule C, was dismissed by the lower Court. She has not challenged that part of the decree either by a separate appeal or cross -objection. The other reliefs, referred to above, were granted by the lower Court, whose decree in respect of them is impugned in appeal.

(2.) The following pedigree will explain the facts of the case and the position of the parties:

(3.) It will be seen that Magan Lal is the sister's son of Mathura Prasad and was adopted by the latter, his material uncle. The factum and validity of adoption have not been questioned before us. The parties belong to a Jain family, and the adoption of a sister's son must have been in pursuance of Jaw or custom applicable to that community. It is common ground that Mathura Prasad's father Nand Lal lived at Shahzapur, a village in the Allahabad District, in which he had, besides a residential house, one-fifth share in certain lands assessed to Government revenue of Rs. 13 and a grove. It is not disputed that its income was negligible Nand Lal died sometime in seventies. The exact year of his death cannot be stated with certainty. The appellant stated in his evidence that Nand Lal died 50-55 years before the present litigation, i.e., sometime between 1870 and 1875. The family migrated to Allahabad long before the defendant was adopted. According to the plaintiff it was after the death of Nand Lal that Mathura Prasad and Bisheshwar Dayal left Shahzadpur for Allahabad, where they started a "sarrafi" shop with funds raised by sale of ornaments of their womenfolk. It is also alleged by her that Mathura Prasad and Bisheshwar Dayal, who carried on a joint "sarrafi" shop after their migration to Allahabad, made a partition of their joint effects in about 1898. According to the evidence of the defendant's witnesses it was Nand Lal who migrated to Allahabad with his sons and started a "isarrafi" shop with funds brought by him from Shahzadpur and the same business was continued after his death by his sons who made a partition in about 1896-97, after which Mathura Prasad carried on his own business and prospered. The defendant was adopted in 1898 by Mathura Prasad who brought him up. Mathura Prasad died on 21 October 1915, leaving him surviving his widow, the plaintiff, his adopted son, the defendant, and a daughter, Bittan Bibi, who is married to Sumat Chand, a witness for the plaintiff. He left, besides a residential house, property valued by the defendant at Rs. 43,800. The parties lived amicably till a time two years before the suit, when the plaintiff began to reside with her daughter in the same neighbourhood.