RAO NARSINGH RAO Vs. BETI MAHALAKSHMI BAI

JUDGEMENT

(1.) This appeal was filed by the plaintiff Narsingh Rao, son of Balwant Singh and grandson of Raja Jaswant Rai, both deceased, against the first defendant, Rani Kishori, since deceased, the widow of Jaswant Rai, the second defendant, her daughter Beti Mahalakshmi Rai, and the third defendant, Musammat Rameshwar Debi, widow of Lal Raghubans Rao, the second defendant's son, to recover the immovable properties which were the subject of a conditional deed of gift executed on September 4, 1875, by Jaswant Rai in favour of the first defendant, his junior wife. The plaintiff claimed that under the deed of gift he was entitled to succeed to these properties on attaining majority and that, even if the provisions of the deed in his favour were inoperative as opposed to the rules of Hindu law, still Rani Kishori took only an estate limited in point of duration which determined when he attained majority, so that he thereupon became entitled to take as heir of the settlor Jaswant Rai.

(2.) The District Judge found that the plaintiff had failed to prove that he was the legitimate son of Jaswant Rai's only son, Lal Balwant Singh, and that even if he was legitimate, he was only entitled to take the estate by virtue of a condition subsequent terminating the estate limited to the Rani and her successors in the event of his attaining majority, and that this condition of defeasance, being illegal and void under Hindu law as created in favour of an unborn person, according to the decision of this Board in Juttendromohun Tagore v. Ganendromohun Tagore (1872) L.R.I.A. Sup. Vol. 47 was inoperative and void and left the Rani's estate unaffected.

(3.) When the case came before the High Court on an appeal by the plaintiff against the decree of the District Judge dismissing the suit, the learned Judge dismissed the appeal on the ground that the plaintiff had failed to prove his legitimacy, and did not go into any other question. In coming to this conclusion, they attached great weight to the fact that the plaintiff's mother had refused to submit herself to a medical examination with reference to the question whether she had ever borne a child. The plaintiff having obtained special leave to appeal from this decree, presented a petition to His Majesty in Council praying that medical evidence on the question should be heard and recorded. His prayer was granted, and two lady gynaecologists, having examined the plaintiff's mother and certified that she had given birth to a child, and both parties having agreed to be bound by this certificate, subject to proof as to the identity of the lady examined, the case was remitted by an Order of His Majesty in Council to the High Court with a direction that in the event of their being satisfied as to the identity of the person be examined, the High Court should reconsider the whole case on the footing that the certificate was correct and pass judgment thereon, and that the appeal should stand over, with liberty to either party to restore or amend it as they might be advised after the High Court had passed its judgment. After a rehearing on remand the High Court delivered judgment, holding, in the light of the new evidence, that the plaintiff was the legitimate son of the late Balwant Singh, and that, though the provisions in the does in his favour were void under Hindu law, as he was not in existence at the date of the deed, still on a true construction of the deed of gift the first defendant's interest was determined on the plaintiff's attaining majority, and that his father Balwant Singh being then dead, he became entitled to come in as next heir of the settlor.