LALA NARAIN DAS Vs. LALA RAMANUJ DAYAL

JUDGEMENT

(1.) DURGA Parshad, who died childless on August 1,1882, leaving two widows, Ram Dei and Hira Dei, was the grandson of Bakhtawar Singh, the son of Jawahir, who had also three other sons, Dilawar Singh, Kishan Sahai, and Har Sahai. Dilawar died leaving an adopted son Chanda Lal, Har Sahai died leaving four sons, Anand Sarup, Jugal Kishorie, Narain Das, and Ram Saran Das. The suit was brought by Kishan Sahai, Chanda Lai, and the four sons of Har Sahai against the respondent and the widows and the mother of Durga Parshad. The plaint stated that in order to defeat the rights of the reversioners the widows had caused the name of the respondent to be entered in respect of most of the properties left by Durga Parshad along with theirs, and his name alone in respect of some on the false allegations that Durga Parshad, left them and Ramanuj Dayal, the minor son of his sister, as his heirs; that he, owing to his having no issue, kept Ramanuj Dayal with him as his adopted son and heir, promising that, in case of his having no male issue, he and his descendants should succeed as owners to the entire property left by him, but that they should have no right to waste the property; and that in case of his having a son of his own, Ramanuj Dayal should get an equal share with him; that he had brought him up, educated him, and celebrated his marriage as if he was his own son; that the widows, in their own right and as guardians of the minor, were heirs in possession of his estate. And the plaintiffs prayed that it might be declared that, these allegations being false, the transfers of the estate of Durga Parshad made on them in favour of Ramanuj Dayal were void as against the plaintiffs or the persons who at the death of the widows would be reversioners, and that the statement that Ramanuj Dayal or his descendants were entitled to the estate of Durga Parshad, by virtue of any declaration falsely attributed to him, was of no effect and false. The widows, in their written statement, said that as their husband was killed suddenly, he could not execute any document in favour of Ramanuj Dayal, and they, therefore, in accordance with his promise and order, made over the entire property to him. The mother in her written statement said the same. Ramanuj Dayal, in his written statement, said that Durga Parshad had a great affection for him from his childhood, and constantly kept him with him, and eventually entered into a contract with him through his father, his guardian, to make him proprietor of, and heir to, all his property; from that time he lived with Durga Parshad as his son, and the widows, in pursuance of the stipulations and directions of their husband, continued to maintain and bring him up during his minority, and gave him possession of all the estate left by Durga Parshad. Upon these pleadings the following issue was settled by the Subordinate Judge: Did Lala Durga Parshad covenant with defendant's father on his behalf to make the defendant his heir and owner of the property, and in the event of his having issue, to give a portion of the property to the defendant? Is such a covenant, if proved, good and binding upon the plaintiff?

(2.) THIS was the substantial question in the suit. Durga Parshad having died childless, the widows were entitled to his property during their lives, and could dispose of their interest in favour of Ramanuj Dayal, but they could not go beyond that. If the reversioners were to be bound, it must be by the act of Durga Parshad. There was no issue whether the allegations of the widows were false. It was not necessary, as if they were true they would not justify the action of the widows if there was no contract by Durga Parshad, as was alleged by Ramanuj Dayal. The evidence of the widows as to what was said by Durga Parshad and Ganga Saran when the alleged covenant or agreement was made is only hearsay, and, to use the language of the Indian Evidence Act, is not relevant. It was admitted by the Subordinate Judge, and is in the record, but it ought now to be disregarded. The evidence of Jwala Parshad, another witness, is too vague and uncertain to have any weight. The principal witness is Ganga Saran, the father of the respondent, who is corroborated in some respects by Diwan Singh, but without that his evidence may be considered trustworthy. Their Lordships have considered the whole of his evidence which is material to the question of a contract, but it is sufficient to state the part which is directly applicable to it. He says that Durga Parshad said to him : "'My property is for this boy; I have no dearer relation in this world than this boy. I will give my property to this boy. He goes to members of the brotherhood on my behalf, and does my household business. If you will take him with you how shall I manage these affairs.' At last Durga Parshad uttered these words : 'I would make him my heir and he would get sufficient education at Meerut for my business.' I said to him: 'Two years have elapsed since your marriage. It is hoped that you may get an issue and your own son may soon be competent to manage your affairs.' Thereupon he said : ' Even if a son be born, mind that I would give a share to Ramanuj Dayal. It is by no means my intention that I may in any way deprive him, but give up this hope that I would ever part with him and allow him to go with you.' Lala Jwala Parshad made me ? understand that my object was the welfare of the boy, that he could not remain with me, for if I got him admitted into the college or sent him to England he could become separated from me, and that I should do what Durga Parshad liked. I thinking that he will be recompensed here for education in England, and that it was impossible to take the boy without complete displeasure of Durga Parshad, and that I did not like to displease him, I told Durga Parshad that the boy was his if he wished to keep him, and that I would not interfere in this affair. Up to that time there was no other son of mine. I finally left the boy, saying that I waived all claim to the boy, and the thought of taking him did not remain in my mind." The reference to the college and England is explained by Ganga Saran having said in the previous part of his evidence that he told Durga Parshad that he wanted to take the boy to Agra (where there is a college), and there educate him, and that he wished he should be educated in England, " either for service or for the Bar." At this time the respondent was nine years old and, being the son of a sister of Durga Parshad, could not according to Hindu law be adopted by him. The only way by which the respondent could be made his heir was by a deed of gift or by a will. Diwan Singh, in his evidence, said that Durga Parshad, about two months before his death, asked him to write out a deed of gift in favour of Ramanuj Dayal, and upon his saying it was not proper to do so, and asking him whether he should write out a will, told him to do so that the matter was put off from time to time, and the will was not written.