MT MISRI Vs. MTRAJMATI

JUDGEMENT

(1.) The litigation out of which this appeal arises can best be explained by reference to a certain pedigree reproduced in the judgment of the trial Court at p. 92 of our record, together with certain relevant facts and dates which the learned Subordinate Judge has very conveniently appended to the said pedigree. The important names in the pedigree are Badri Das and Waziri Lal, commonly referred to in the evidence and the documents as Waziri Mal. These two persons were distant cousins, being descended in the male line from a common great- grandfather. They both died in the year 1881, Badri Das dying first. This gentleman resided at Srinagar in Garhwal, where he carried on business under the name and style of Ram Sahai-Badri Das. Waziri Mal, on the other hand, resided at Najibabad and carried on business there under the name and style of Ganga Ram Jawahir Lal. He died without male issue leaving him surviving a widow, Mt. Goman who died on 25 May 1912. Badri Das had a son by name Nannhu Mal. He must have been born somewhere about the year 1873; at any rate it appears certain that he attained majority in the year 1891. He died on 8 July 1900; that is to say, almost twelve full years before Mt. Goman. He left no issue but his widow, Mt. Rajmati, who is the principal defendant in the present suit. The plaintiff is Mt. Misri, daughter of Waziri Mal by his wife Mt. Goman. Her case is that Waziri Mal's estate passed on his death to Mt. Goman as his widow, and that she, the plaintiff, became entitled to the same under the Hindu Law from the date of Mt. Goman's death. We may note that the parties are Vaish Agarwal Jains and it might, under some circumstances, have been of importance to determine whether the civil law to which they are subject, more particularly as regards the matter of adoption, was or was not the ordinary Hindu Law; but in view of the course actually taken by the litigation, this question doss not arise. There was a second defendant impleaded in the plaint, namely, one Jangi Mal, also called Jagat Narain, described in the plaint as a minor, son of Jamna Das, but impleaded under the guardianship of defendant 1, Mt. Rajmati. With reference to this boy, the allegation in the plaint is that the first defendant wrongly alleges adoption of Jangi Mal alias Jagat Narain as a son to Nannhu Mal. To this Mt. Rajmati replied that she herself had formally adopted the second defendant, after performing all necessary ceremonies and executing a deed of adoption; also that the said adoption was valid according to the custom prevailing amongst Vaish Agarwal Jainjs. There was an issue framed upon these pleadings, but the learned Subordinate Judge came to the conclusion that the suit could be disposed of without trying out this issue. It is fairly obvious nevertheless that this dispute about the adoption of the second defendant is at the bottom of the present litigation. The whole point of the matter is that there was a dispute, on the death of Mt. Goman, regarding the property, both movable and immovable, which seems to have been in the effective possession of that lady at the time of her death, and that this dispute was settled by a family arrangement. Looking more particularly at a certain letter, to which we shall refer again, which is to be found at p. 191 of our record, we have practically no doubt that the possession obtained by Mt. Rajmati under the arrangement arrived at after Mt. Goman's death would never have been challenged if that lady had not adopted, or professed to adopt, a youth who is a member of her own family and not of the family of her late husband. On the main question raised in the plaint, Mt. Rajmati's answer was twofold: in the first place, she alleged that Badri Das, Nannhu Mal and Waziri Mal were members of a joint undivided Hindu family, and so continued up to the time of the respective deaths of Badri Das and Waziri Mal. If so, of course Nannhu Mal would become by survivorship the owner of all property movable and immovable, which had ever belonged either to Badri Das or to Waziri Mal, and on his death the title to such property would pass to his widow, Mt. Rajmati. As a second line of defence it was pleaded that Nannhu, Mal had been adopted by Waziri Mal. If this allegation were proved, then, as regards the property of Waziri Mal, at any rate, the same consequence would follow. It would devolve first upon Nannhu Mal and after his death upon his widow.

(2.) We gather from this record that Waziri Mal's assets consisted mainly of a trading and money-lending business. The immovable property possessed by him, which has been put in issue in the suit, now before us, comprised one shop and one house in the town of Najibabad and the zamindari rights over the entire 20 biswa mahal in a village known as Rahatpur Khurd. Mt. Misri, we might have noted before, is married to a gentleman of wealth and position named Manohari Lal, who resides at Srinagar in the district of Garhwal. She herself asserts that she was living there with her husband at the time of Goman's death. The defendant, Mt. Rajmati, on the other hand was living in Najibabad with Mt. Goman, and it is alleged in the plaint itself that in some way or other Mt. Rajmati contrived, with the help of servants of the firm and other persons, to get into possession of the account books of the business which had been Waziri Mal s. We take it there can be no doubt that from the time of Mt. Goman's death this business as well as the shop and the house referred to in the plaint, have been in the effective possession of Mt. Rajmati. As regards the property in village Rahatpur Khurd certain facts are admitted. The first application for mutation of names in respect of this property was made by Mt. Rajmati, who claimed to have her name recorded as sole owner of the entire 20 biswas. Mt. Misri says that she and her husband both came to Najibabad as soon as possible after obtaining news of Mt. Goman's death, and it is beyond doubt that on 12 July 1912 the petition re-produced at p. 553 of our record was presented by a pleader on behalf of Mt. Misri to the revenue Court at Najibabad which was seised of the question as to the mutation of names in the revenue records to be effected in respect of the 20 biswa share in Rahatpur Khurd, which share had obviously stood up to that moment in the name of Mt. Goman. In this petition it is stated simply that Mt. Misri has only just received notice of the application filed on behalf of Mt. Rajmati, that she desires to enter an objection to the same, and to produce oral and documentary evidence at any enquiry that may be held. She asked for 20 days time to enable her to prepare and file a detailed pleading, and also for the production of oral and documentary evidence. On the very next day, that is to say, on the 13 July 1912, a petition was presented to the same revenue Court which is reproduced at p. 555 of our printed book, and is the most important document in the case. It purports to be a compromise in the disputed matter of mutation of names arrived at between Mt. Rajmati and Mt. Misri, the two contending parties. It informs the Court that a settlement has been arrived at, and asks that in accordance with the said settlement, Mt. Misri may be recorded as proprietor in possession of a 5 biswa share in village Rahatpur and Mt. Rajmati is proprietor of the remaining 15 biswa share. There is one phrase in this petition about which there has been much argument. Translating that phrase as literally as possible, we may reproduce it as follows: "As to the remaining other assets left by Mt. Goman there remains no concern in the same on the part of Mt. Misri."

(3.) This petition purports to be signed by duly authorized pleaders on behalf of both parties and also by the two ladies personally. It is certain both of them were literate to a, certain extent. They could read and write the Nagri character and were quite capable of signing their names in that character. This being a matter in which pardanashin ladies were concerned, the pleaders employed on both sides were not prepared to accept entire responsibility for the presentation of this petition. They therefore asked that a responsible officer, the supervisor qanungo might be sent to the residences of the two ladies to verify the petition. On p. 557 of our record we have the formal report of the said officer, B. Ajit Singh. He tells us that both the ladies verified the agreement after hearing and understanding it. He adds that Mt. Misri was identified at the time of this verification by her own husband, Manohari Lal, and also by the patwari of the village (presumably of Rahatpur) whereas Mt, Rajmati was identified by her brother, Jamna Das, and by the same patwari At the foot of this document are the thumb-impressions of both ladies and their signatures in the Nagri character. There are also the signatures of Manohari Lal and of Mathura Prasad patwari. The defendants were able to call Ajit Singh, supervisor qanungo, and his evidence is to be found at p. 71 and the following pages of our printed book. Obviously the witness had no very distinct recollection of the details of the transaction, apart from what he had stated in the formal report prepared by him at the time. In the course of his examination he professed to recollect a number of circumstances which had at first escaped his memory. We think it sufficient to say that we see no reason to distrust the good faith of the witness, and that his evidence does prove beyond possibility of doubt that Mt. Misri did attest the petition of the 13 July 1912, did understand the contents of that document, and that, apart from the patwari and various persons who had a concern in the matter as servants of Waziri Mal's firm, she had present with her at the time her own husband, Manohari Lal, and a brother of her husband called Anupor Anupi Singh. Evidence substantially to the same effect is given by Narain Das, a Jain moneylender of Najibabad, who is a connexion by marriage of the family; by Ganga Sahai, an old employee of the firm who is now in the service of Mt. Rajmati, and by that lady's brother, Jamna Das. The trial Court has arrived at the following findings: 1. It is not proved that Badri Das and Waziri Mal were joint at the time of the death of either of them; on the contrary there is documentary evidence on the record which absolutely negatives the suggestion of such jointness. 2. As regards the alleged adoption of Nannhu Mal, with reference to which the defendants were with some difficulty tied down to the proposition that the adoption had taken place in the lifetime of Waziri Mal in or about the year 1880, it is not proved that such adoption took place. On the contrary, there are certain facts established, more particularly with reference to Nannhu Mal's succession to the estate of Badri Das, and his dealings with the property of Badri Das, which negative altogether the suggestion that he can have been adopted by Waziri Mal at a time when Badri Das was still alive. 3. Whatever might have been the respective rights of the parties, as a result of these two findings, there was on the 12 or 13 July 1912 a settlement arrived at between the two ladies Mt. Misri and Mt. Rajmati, the terms of which are in part evidenced by the petition of 13 July 1912 and in part by the depositions of witnesses. That arrangement was a bona fide settlement of a dispute between members of the same family, arrived at when there had been no judicial adjudication; the arrangement was in fact acted upon by both ladies, and neither of them can be permitted to resile from it now. Under the terms of that arrangement Mt. Misri took the 5 biswas share in village Rahatpur, of which she is still in possession but relinquished into the hands of Mt. Rajmati, not only the remaining 15 biswa share in village Rahatpur, but also the house and shop in Najibabad and all other property which was in any way claimable by Mt. Misri as the daughter of Waziri Mal.