BITTO KUNWAR Vs. KESHO PERSHAD

JUDGEMENT

(1.) THE present appellant is the widow and heir and legal representative of Sheo Dial alias Bacha Tewari, the original appellant. On March 24,1886, the respondent brought a suit against him and Rajah Ajit Singh, a purchaser from him, to recover possession of property, consisting of houses and lands in the districts of Benares, Jaunpur, Azamgarh and Ghazipur, of which he was in possession. The respondent in his plaint alleges that on the death of Bhawani Pershad Tewari, the owner of the property in suit, who died in November, 1842, without issue, Rani Kuar and Dharma Kuar, the widows of his deceased brother Debi Pershad Tewari, and Ramkishen Misser, the son of the niece of Bhawani, who lived in commensality with him, obtained proprietary possession of the property left by him They performed the services and managed the affairs of a temple which had been built by him, And of a bhandara attached to it, and after payment of the expenses of these institutions enjoyed the rest of the income of the property. Some time afterwards a dispute arose between them and the appellant as to the right of heirship to the deceased; the dispute was settled by an agreement, dated January 4,1850, to the effect that Ramkishen and the appellant should be the proprietors and should hold possession in equal shares. Ramkishen was accordingly in joint proprietary possession and enjoyment with the appellant during his life. He died on January 22, 1870, without issue, and his widow, Mitho Kuar, succeeded to the possession of the property as his heir. She died on September 26, 1884, and on her death the respondent was the lawful heir to the estate of Ramkishen. In 1875, in a suit brought by Mitho Kuar against the appellant for half of the profit of one of the mauzas, the appellant set up a will dated August 7, 1842, made by Bhawani, but torn up in his lifetime, and not in existence at the time of his death. The case of Bacha Tewari in his written statement, so far as it is now material, is that by the will Bhawani appointed one Avadh Lal to be his executor, and entrusted him with the whole estate for charitable and religious purposes, and fixed salaries for the support of his heirs; that Bhawani never tore up or destroyed the will; and that Rani Kuar and Dharma Kuar and Ramkishen always admitted its existence and validity.

(2.) IT was not disputed before their Lordships that the respondent is the heir of Ramkishen. Of the issues settled by the Subordinate Judge, only two are now material: (4.) " Of what right had Ramkishen Misser been in possession?" and (5.), " Did Bhawani Pershad Tewari revoke the will which he had made during lifetime, and was it acted upon after his death?" A copy of a will of Bhawani dated August 27, 1842, and registered on the 30th of that month, was filed in the suit. Bhawani having died in November, 1842, the only evidence upon these issues was documentary.

(3.) THE parties to the agreement, Rani Kuar, Ramkishen., and Bacha Tewari, are described in it as heirs of Bhawani, and it purports to be made upon a dispute in respect to the' property Owing to the claim of Bacha Tewari as cousin of Debi Parshad Tewari, the husband of Rani Kuar and in direct lineal descent with him, and to avoid the property being wasted by litigation. It contains no reference to any will of Bhawani or to any trusts under such a will. The property is to be held by Ramkishen and Bacha Tewari in equal shares, but is to remain joint, and the provisions are naturally such as would be made in that case. Their Lordships are of opinion that the agreement does not recognise any trust.