JAGARNATH PRASAD SINGH Vs. SURAJDEO NARAIN SINGH

JUDGEMENT

(1.) The late Kodai Singh of Bishunpur Saraiya in Muzaiiarpur had three sons, Lachnii Narain, Deodip Narain and Kuldip Narain. Kuldip survived both of his brothers each of whom left a family of sons, but Kuldip, when he died towards the end of 1921, left two widows but no children. The names of the widows were substituted for the name of Kuldip in the Collector's registers. the family possessed small shares in two estates in Cheutaha of four annas in the estate bearing Tauzl No. 6901-1, in which Kuldip's share was recorded as of one anna six gandas and of two annas twelve gandas in the estate bearing Tauzi No. 6809-1 in which Kuldip"s share was recorded as eight gandas. The Deoria factory had a snare of eight annas in the first estate and of twelve annas odd in the other Kuldip in the beginning of 1919 had entered into negotiations with the manager of the factory for the purchase of these shares, but the manager could not enter into a definite contract without authority from the proprietors in England and without a power of attorney. It was contemplated that the properly should be purchased for Rs. 12,600 on which account early in 1919 Kuldip deposited Rs. 13,000 with the manager of the factory with the arrangement that until the conveyance should be executed the deposit should be treated as a loan to the factory bearing interest at the rate of six per cent, per annum. Kuldip died before the conveyance could be made but on February 17, 1922, the manager Mr. R.H. Waller, obtained a power of attorney with authority to complete the sale, which was completed on March 21, 1922, when the shares in the two estates were conveyed by Mr. Waller to the widows of Kuldip, Musammat Sita Kuer and, Musammat Bhagwati Kuer, whose names were in due course substituted in the Collector's land register for those of. the proprietors of the factory. Rita Kuer died in the autumn of 1928- In 1931, the surviving widow, Musammat Bhagwati Kuer, executed a deed of gift, wherebv she gave to her nephew, Jagarnath Prasad, grandson of Lacbmi Narain the elder brother of Kuldip the shares of proprietary interest of which she and Sita Kuer bad completed the purchase in 1922. In the deed of gift Bhagwati Kuer described Tagarnath Prasad as the adopted son of Kuldip (karta. vutm). Thereupon the three sons of Deodip Narain. Kuldip's other brother, instituted a suit out of which this appeal arises. They alTeged that Kuldip had been joint with his brother Deodip Narain, and that he died in a state of jointness with Deodip Narain's sons, the plaintiffs. They alleged also that Kuldip had adopted as a karta putra Rajindra Prasad Singh, one of the three plaintiffs, and that in 1920 he had made a will whereby he bequeathed his property to Rajindra Prasad, providing that if Rajindra should become a Sadhu his widow should enjoy a life interest with remainder to a son of the plaintiff, Surajdeo Narain.

(2.) The limitations of the will are not very clearly expressed but the matter does not appear to be of any great importance. The plaintiffs prayed for a declaration that the deed of gift should be declared to be of no effect against them, and for a declaration that Jagarnalh Prasad was not the adopted son of Kuldip. The defendants denied that Kuldip bad been joint with the members of Surajdeo Narain's family or that be had ever adopted Rajindra; and they alleged that the shares purchased in 1922 had been acquired with money which Bhagwati Kuer had obtained from berown family, so that they were her stridhan property. They alleged that Jagarnath Prasad had been adopted by Kuldip. On these pleadings the Subordinate Judge framed the following issues: (1) Whether the suit as framed is maintainable? (2) Whether plaintiffs have got any right to sue or cause of action ? (3) Whether the suit is barred under Section 42, Specific Relief Act? (4) Whether the genealogical table given in the plaint is correct? (5) Whether Kuldip Narain died while living joint with plaintiffs? (6) Whether Jagarnath Prasad was adopted by Kuldip Narain as his karta putra? Whether he adopted Rajindra Prasad as his karta putra as alleged by the plaintiffs? (7) Whether the will propounded by the plaintiffs is genuine and valid? (8) Whether the disputed land was acquired out, of the joint family funds of the plaintiffs or it was stridhan of Musammat Bhagwati Kuer? (9) Whether the Atainama, dated October 9, 1931, is valid and genuine? (10) Whether the Atainama dated October 9, 1931, is binding on the plaintiffs after the death of defendant No. 1? (11) To what other relief, if any, are the plaintiffs entitled?

(3.) The Subordinate Judge found that the account of the genealogy given by the plaintiffs was correct, that Kuldip died in a state of separation, and that he had not adopted Jagarnath or Rajindra. He found that the will propounded by the plaintiffs was not genuine; that the disputed land was acquired out of Kuldip's own funds and not from the money of Musammat Bhagwati Kuer. He found that the deed of gift was valid and genuine. On these findings of fact, applying the ordinary Mitakshara law, he gave to the plaintiffs the declarations that the deed of gift would not be binding on the plaintiffs after the death , of Musammat Bhagwati Kuer, and that Jagarnath Prasad was not the adopted son of Kuldip Narain. The defendants Bhagwati Kuer and Jagarnath Prasad and his father appealed from that decision; but Bhagwati Kuer died during the pendency of the appeal so that Jagarnath Prasad and his father remain as appellants. The appellants attack the Subordinate Judge's findings of fact to the effect that the elder brother Lachmi Narain bad not the same mother as his two brothers Deodip and Kuldip; that Jagarnath Prasad had not been adopted as karta putra and that the purchase was not made with money which was the stridhan of Musammat Bhagwati Kuer. The respondents by their cross objection supporting the decree on grounds decided against them in the Court below) attack all those findings of fact of the learned Subordinate Judge which are in favour of the defendants. It will be convenient to treat these issues of fact seriatim in the order in which they have been stated by the learned Subordinate Judge. (After discussing evidence his Lordship proceeded.) I would thus accept all the findings of fact of the learned Subordinate Judge which are to the following effect. Kuldip was separate from the family of his brothers; he died without issue leaving two widows, who would enjoy a widow's estate in his property according to the school of Hindu Law by which they were governed; so that the property or at least the immovable property would after the death of the last surviving widow go to the reversionary heirs of Kuldip. Kuldip adop ed no son; he made no will. He left Rs. 13,100 earmarked for the purchase of shares in estates in which he already held an interest; and his widows after his death applied his money to the completion of that transaction which he had contemplated. On these points we affirm the findings of fact of the learned Subordinate Judge and we now come to the discussion of the questions of law which arise on these findings.