SURAJ PRASAD Vs. MTGULAB DEI

JUDGEMENT

(1.) This is an appeal by the defendants against whom the plaintiff's suit for possession of certain zamindari and house properties, together with Rs. 2,000 as mesne profits, has been decreed by the Court below. Apart from the general plea that the plaintiff is entitled to no relief, it is contended that in no event is she entitled to item 3, Schedule C of the plaint, because that property cannot be said to be an accretion to the estate claimed by the plaintiff. The facts are that one Hazari Lal was the owner of considerable zamindari and house properties; he died on 30 April 1911 leaving behind him a widow, Mt. Janki Kuer, and two daughters, Mt. Gulab Dei (the plaintiff in the present suit) and Mt. Rajrani. Mt. Janki also died on 10 August 1913 and Mt. Rajrani died on 13 August 1929. Suraj Prasad, defendant 1, aged about three years, at 4he time of the (institution of the suit is the son of Mt. Rajrani and Lachmi Chand, defendant 2, was the husband of Mt. Rajrani. He too died during the pendency of the appeal and his representatives have been brought on the record. When Hazard Lai died, Mt. Rajrani had already been married, but Mt. Gulab Dei was unmarried and remained so even at the time of the death of Mt. Janki. The case for the plaintiff was that Lachmi Chand, defendant 2, was a person of scheming and avaricious nature and Mt. Janki Kuer was always apprehensive that he might after her death try to deprive the plaintiff of the properties which she would inherit as an heiress to her father after Mt. Janki Kuer's death, and that in view of these apprehensions Mt. Janki Kuer executed a registered will on 11 July 1913 by which it was provided that the plaintiff should live after the death of Mt. Janki Kuer with her maternal uncles, Lalas Jai Narain and Prag Narain at Etawah, who were to look after her as her guardians and were also to arrange for her marriage, and certain penal provisions were laid down if defendant 2 felt inclined to marry with the plaintiff.

(2.) The plaintiff goes on to say that: Mt. Janki Kuer, under the impression that her two daughters would equally, succeed to their father's property as life-tenants after her death and in order to avoid disputes that might arise between them in the enjoyment of the aforesaid properties, further thought fit to divide the immoveable properties in two lots alleging in the aforesaid will that she was authorized to do so by her late husband and also directed the moveables and their sale proceeds to be equally divided between them after her death; that immoveable properties mentioned in lots Nos. 1 and 2 in the aforesaid will were devised to the two daughters for their lifetime only and that on the death of Mt. Janki Kuer the names of both Mt. Rajrani and the plaintiff were entered in Government papers in respect of the zamindari properties mentioned in lots Nos. 1 and 2 as detailed in the will, and Mt. Rajrani remained in enjoyment of the profits and income accruing from the properties mentioned in lot No. 1 till her death. Mt. Rajrani died on 13 August 1929 and the name of defendant 1 was mutated over the properties mentioned in lot No. 1 of the will and the plaintiff who was a young widowed purdanashin lady and lived in the District of Allahabad did. not become aware of the mutation proceedings and could not prefer objections thereto, and that she came to know of the entry of the sic of defendant 1 in the revenue papers in the course of proceedings taken by defendant 1 for substitution of his name in place of Mt. Rajrani Kuer in Civil Suit No. 160 of 1929 which was pending in the Court of the learned Munsif of Akbarpur at Cawnpore. This, it is said, afforded the plaintiff a cause of action for the present fiuit, because the plaintiff is entitled to the entire property left by Lala Hazari Lal as the next heir to him, and Mt. Janki Kuer, when the executed the will, purported to act under the authority of her husband Lala Hazari Lal, and the arrangement made by her in the said will for the separate possession and enjoyment of the properties left by Lala Hazari Lal to be held by the daughters5 during their lifetime leaves the right of one daughter to succeed to the share so held by the other on her death unaffected.

(3.) Upon these facts the plaintiff claimed to recover possession over immoveable properties detailed in Schedules A, B, C and D of the plaint and for Rs. 4,022-13-6 as mesne profits. As stated before, the plaintiff's suit for the recovery of possession over immoveable properties mentioned in the plaint (with a few exceptions about which there is no controversy) and Rs. 2,000 as mesne profits has been decreed by the Court below. The defence to the suit was that the properties in suit had been grossly overvalued ; that Lala Hazari Lal who had no male issue had on several occasions expressed his desire and intention that his property after the death of his wife should be divided between his two daughters in a way so as to constitute them separate owners of the properties to be allotted to them respectively with no rights of survivorship inter se; that on the death of one daughter the properties allotted to her would go to her issues and in case she died childless her property would devolve on the children of the deceased daughter's husband from another wife; that Hazari Lal had further instructed his wife that should he fail to give effect to his wishes and execute the necessary deed, she would execute a document for the said object; that Hazari Lal died suddenly of heart failure and consequently could not give effect to his said wishes by executing the contemplated document; that in July 1913, when Mt. Janki Kuer apprehended that her end was approaching, she in order to carry out the instructions of her deceased husband for effecting an absolute partition between the two daughters with no rights of survivorship inter se, executed a will on 17 July 1913 and sic defendant 1 became the exclusive owner of the property entered in lot No. 1 of the will after the death of his mother Mt. Rajrani. It was said that the plaintiff had all along been recognizing Mt. Rajrani's right and title to the property in suit and had been permitting defendant 1 and his mother Mt. Rajrani to act upon the belief that they were separate owners of the property in suit, and thus the plaintiff's suit was barred by time and estoppel. Certain specific objections were taken to certain specific items of property and it was said that they did not form part of the estate of Hazari Lal.