SAHU JOTI PRASAD Vs. BAHAL SINGH

JUDGEMENT

(1.) This appeal has been filed by the plaintiff whose suit for a large amount of money Rs. 24,995, and for possession of certain properties was dismissed by the learned Additional Civil Judge of Bijnor. According to the plaintiff, the bonds mentioned in lists (a), (b) and (c), the zamindari properties in lists (d) and (H) and the house properties in list (w) belonged to one Gulzari Mal, who died on 3 July 1914. The plaintiff claimed that he was the adopted son of Gulzari Mal having been adopted by his widow, Mt. Bhagirathi, on 25 January 1939, and had thus " become the owner of these properties. The following pedigree will be helpful in understanding the facts of this case: Padam Sen, the common ancestor of the parties, died on 17 February 1875. His four sons had separated at some time - it is not known when. On 25 January 1890, they partitioned certain house properties, and in the document it is mentioned that they had been for a long time in possession of, and dwelling in, their respective shares. The par. ties are Jains of the Saraogi Agarwal sect and they had been separately carrying on business and acquiring property, but it appears that they were on quite good terms with each other. Gulzari Mal died on 3 July 1914, and was succeeded by his widow, Mt. Bhagirathi. As a Jain widow she would be the full owner of all the self-acquired property of Gulzari Mal. Plaintiff s, case was that all the properties acquired by Gulzari Mal were acquired by him with the aid of ancestral nucleus which he had got at the partition with his brothers out of the property left by Padam Sen and therefore the entire property must be deemed to be ancestral property and Mt. Bhagirathi was in possession of the same merely as a limited owner. In this case parties have not raised the question that by custom amongst the Jain Agarwals of the Saraogi sect, to which the parties belong, the widow has absolute interest even in ancestral property. So we will assume that if the property was ancestral, Mt. Bhagirathi's rights were limited and she had only the rights of Hindu widow There is one more point that we may indicate, but as it has not been raised before us we need not go into it. The controversy in the lower Court has centred round the question whether the bulk of the property was self-acquired or ancestral and the property was claimed to be ancestral on the ground that there was a nucleus of ancestral property and it was assumed that in such a case the property would be deemed to be ancestral unless the contrary was proved.

(2.) In a joint Hindu family where it is claimed that a certain property is the self- acquired property of a coparcener, a presumption of fact arises that the property has been acquired out of the joint family funds if it is proved that the coparcener had sufficient joint family funds in his hands out of which the property could be acquired and it would be then for the person who sets up the claim that the property is the self-acquired property of the coparcener to prove that it was acquired out of his separate funds. In the case of a separated Hindu, the entire property in his hands is his own and self-acquired property may mean property purchased by him in contradistinction to the property inherited by him from his ancestors. If such a meaning is assigned to the words "self-acquired property" no question of ancestral nucleus would arise and ancestral property would be the property that was inherited by Gulzari Mal from his ancestors and the self, acquired property would be the property purchased by Gulzari Mal. However, as we have said, it has been assumed in this case that the property acquired., out of the income of the ancestral property or as it is called out of ancestral funds would be the ancestral property of Gulzari Mal in which the widow would have only a limited interest and we need not, therefore, go into this question. At the time when Gulzari Mal died Behari Lal was already dead, but bis other two brothers, Darbari Mal and Hardeo Singh, were alive. Soon after the death of Gulzari Mal Hardeo Singh claimed that certain properties which stood in the name of Gulzari Mal belonged to him and Gulzari Mal was merely a benamidar for Hardeo Singh.

(3.) On 14 December 1914 two documents were executed which were called deeds of relinquishment. One document was executed by Mt. Bhagirathi who admitted that certain bonds and certain properties detailed in the said document belonged to Hardeo Singh and her husband was a mere benamidar for him, while by the other document Hardeo Singh and Darbari Mal admitted that Gulzari Mal was the exclusive owner of the properties mentioned in the said document and on his death Bhagirathi became the owner thereof. On 3 July 1921 Hardeo Singh gave a portion of his property to Bahal Singh. The deed is printed at p. 334 of the paper book. On 25 December 1921 he bequeathed the rest of the property to Bahal Singh under a will. Hardeo Singh died in December 1926 and Bahal Singh became the owner of the properties given to him under the will of Hardeo Singh, It is admitted by Mt. Bhagirathi that she became displeased with Bahal, Singh on account of a dispute with him about an abchak, and then, to have her revenge, she took legal opinion and adopted the plaintiff so that the pre-sent suit could be filed. The plaintiff, as we have already said, was adopted on 25 January 1939 and he filed this suit on 31 January--1939 repudiating the deed of relinquishment executed by Mt. Bhagirathi on 14 December 1914. As regards the simple mortgage-deeds and the usufructuary mortgages in the name of Gulzari Mal, the details of which are given in lists (a), (b) and (c) of the plaint, the plaintiff claimed a money-decree. As regards the zamindari and the house property, the plaintiff claimed possession by the dispossession of defendant 1.