MT BINDA KUER Vs. LALITA PRASAD CHOUDHARY

JUDGEMENT

(1.) These are two consolidated appeals brought by the plaintiffs whose suit was decreed by the Subordinate Judge of Muzaffarpur on 16 August 1928, but was dismissed by two decrees of the High Court of Patna on 14 December 1932. The plaintiffs claimed declaration of their title to, and a decree for possession of, a half share of the properties referred to in the plaint as having belonged to one Bajrangi Lal, who died in 1861, and whose widow, Mt. Amola Kuer, died in 1916. The plaintiffs' case was that they, together with defendant 63, were entitled to half, and that defendants 1 and 2 and the husband of defendant 3 were entitled to the other half. A number of other persons were impleaded as purchasers from the widow of different items of her husband's property, but both Courts in India have negatived the pleas of legal necessity and the purchaser respondents can make no higher case than those respondents who are members of the family. Their Lordships will use the expression "the defendants" as comprising the latter class only.

(2.) From the pedigree, it will be seen that the common ancestor of plaintiffs and defendants was one Madari Lal. He had five sons, Hanuman, Bhairo, Ganesh, Mahesh, and Narain. It is common ground that the sons were all divided. The plaintiffs belong to the branch of the son Ganesh, and the defendants to the branch of the son Mahesh. Mahesh had two sons, Naurangi Lal and Bajrangi Lal. Of Hanuman it is clear that in or about 1852, he adopted Bajrangi Lal; and the chief point of controversy between the parties in the present case is whether this adoption was in the Dattaka form or in the Kritrima form. Bajrangi Lal, at the time was some five or seven years old, and he appears to have died childless in or about 1861, at about 15 years of age, leaving him surviving his child widow Amola. An important document in the case is a registered will, dated 11 May 1857, witnessed by a considerable number of persons and executed by Hanuman. It is not quite strictly described as a will, as it purports to effect that Hanuman's property should, for the rest of his life, be in his possession as a trustee or guardian for Bajrangi Lal, but the main purpose of the instrument is to declare that Bajrangi Lal should succeed to the properties of Hanuman. Hanuman died not long after executing this instrument, namely in 1858. In 1867, his brother, Narain Dutt died, having, it would appear- although the matter is not conceded on behalf of the plaintiffs-appellants in this appeal- adopted Naurangi Lal, the other son of Mahesh. Their Lordships will assume for the purposes of the present decision, though this adoption was at one time challenged, that it was, in fact, made and was made, as the defendants allege, in the Kritrima form.

(3.) Bhairo, the first to die of the sons of Madari Lal, left a son Bigu Lal, who died in 1849, leaving a widow Anandi Kuer. When she died in 1885, questions arose as to the persons entitled to succeed to the property of Bigu Lal as being his nearest reversioners. Ganesh, the head of the branch to which the plaintiffs belong, had died in 1881, having on 6 April 1868, entered into a compromise with his nephew Naurangi Lal, evidenced by a petition of that date in a proceeding under the Succession Certificate Act of 1860. The immediate occasion of the proceeding was the death of Narain in 1867, which raised the question whether or not Naurangi Lal was his adopted son. Ganesh claimed to be entitled to a share of Narain's property as his brother. Naurangi Lal, it would appear, based his claim on a deed called a karta putri deed. This dispute was settled by a compromise into which was brought not only the question of the succession to Narain, but questions of the prospects of succession to the property of Hanuman and Bigu Lal. Of the three annas and four gundas share of Narain in the family property, it was agreed that two annas and two gundas should go to Naurangi Lal, and one anna and two gundas to Ganesh. Of Bigu Lal's share, then in possession of his widow, it was agreed that two annas and four gundas should, on the death of the widow, go to Ganesh, and one anna to Naurangi Lal. Of Hanuman's share, which had descended to Bajrangi Lal and was, at the time, in the possession of Amola as his widow, it was agreed that on her death, the whole should go to Naurangi Lal and Ganesh and his heirs should have no claim thereto. This compromise was acted on by the Court, a certificate being given to the claimants for the recovery of the assets of Narain in accordance with the compromise. The agreement was expressed to be made by each of the uncle and nephew on behalf of himself and his heirs.