GOPAL DAS Vs. SRI THAKURJI

JUDGEMENT

(1.) By the suit giving rise to the present appeal the plaintiff-appellants assailed the validity of a compromise entered into by their maternal grandmother Bindeshri Bahu in the year 1896 and the validity of a decree passed in a suit brought by their mother Sohan Bibi in the year 1906 for a declaration that the compromise was not binding on her. The following pedigree will explain the relationship of the parties:

(2.) It is common ground that out of the properties in dispute village Shivdasa and the two houses in the city of Benares known as bari haveli and choti haveli and the Government promissory notes were owned by B. Harish Chandra. There is controversy between the parties as regards the existence or the ownership of the remaining properties in dispute. B. Harish Chandra was a Darbari and was the Dewan of Raja Narain Rao Peshwa, and was admittedly in affluent circumstances. He died in 1856 leaving a widow Manki Bahu and two daughters named Hiran Bibi and Mukandi Bibi. After the death of Harish Chandra a third daughter Mt. Punno Bibi was born to him. Manki Bahu entered into possession of all the properties left by Harish Chandra. In the year 1860 Manki Bahu adopted a boy named Sita Ram. After the adoption Sita Ram was named Parshottam Das. It appears that the natural father of Sita Ram was dead at the time of adoption and Sita Ram, was given in adoption by Mt. Jassa, his natural mother, by means of a deed of agreement dated 23 February 1860, which is printed at p. 103 of the record. The learned Subordinate Judge has found, and we agree with the finding, that the adoption was made by Manki Bahu, in pursuance of the authority given to her by her husband. On 10 May 1860 Manki Bahu filed a petition in the Court of the Agent to the Governor-General praying that the name of Parshottam Das "be entered in the record of the office of the Agent to the Governor-General in place of B. Harish Chandra." In the petition it was stated by Manki Bahu, that the adoption was made by her "in obedience to her late husband's orders" and that it has been stipulated that this applicant will, during her lifetime, retain absolute control over her husband's property, and all management and acts will be done according to the directions given by her, and that the future arrangement and management of the effects and estate of her husband and of the aforesaid adopted boy and of others after her death will be carried on according to the directions given by the applicant for that purpose.

(3.) The Agent to the Governor General ordered that "in accordance with the prayer of the petitioner the name of the adopted son be entered in the list of darbaris kept at this office." It would be noted that there is nothing in the deed of agreement executed by Mt. Jassa to support the suggestion that the stipulation mentioned in the petition of Manki Bahu was made at the time of the adoption. Apart from this any stipulation which is repugnant to the rights of an adopted son in the estate of his adoptive father is void. Further, under the petition filed by her, all that Mt. Manki Bahu, retained was the authority to control and manage the property during her lifetime and she did not reserve to herself proprietary interest in her husband's estate. On the adoption of Parshotam Das the entire estate of Harish Chandra vested in him, but, as Parshotam was only about 5 years of age at the time of the adoption, Manki Bahu continued in possession of the properties, presumably as the guardian of her adopted son, and as such retained "absolute control over her husband's property" and "all management and acts" were done according to her directions. On 6 September 1871 Manki Bahu presented another petition to the Agent to the Governor-General intimating that she "executes a will and wishes" that the condition laid down in the will regarding the management of the property be acted upon after her death. She also stated in the petition that she will remain "the owner in possession" of all the properties during her lifetime. The Agent to the Governor-General ordered that "as the petitioner is at liberty to make whatever arrangement she likes regarding her property" the petition "be kept in the office and the petitioner be informed by means of a copy of the order."