JAI NARAIN Vs. BANKEY LAL

JUDGEMENT

(1.) The two appeals Nos. 143 and 241 of 1916 are connected and arise out of a suit brought under Section 92 of the Code of Civil Procedure.

(2.) The principal appeal is No. 140 of 1916 and is by one of the defendants only. It appears that there were two brothers, called Kunj Behari Lal and Sital Prasad, who had a considerable joint business at Ecawah, Kunj Behari had no children. Sital Prasad had four sons, namely, Banka Behari Lal, Girwardhari Lal, Banarsi Das and Sheo Narayan. On the 6th of December 1900 there was a partition between the two brothers, Kunj Behari and Sital Prasad. On the 21st of December 1900, Kunj Bahari made a Will by which he gave his separated share to his nephew, Banke Behari Lal, and the eldest son of the latter, Jai Narayan, in the proportion of 7 annas and 9 annas respectively. Kunj Behari Lal died some time prior to 1902. ON the 18th of December 1962, Sheo Narayan and Girwardhari Lal brought a suit against their father and their brothers and nephews for partition of the property, ignoring the partition of 1900 and contesting at the same time the validity of the Will of Kunj Behari Lal in favour of Banke Behari and his son. The dispute between the parties was referred to arbitration. The arbitrators upheld the partition of 1900 as also the Will of Kunj Bahari Lal. They divided the separated share of Sital Prasad between him and his descendants. A decree was accordingly made in terras of the award on the 16th of April 1903, under which property of the value of about Rs. 52,000 was given to Sital Prasad, On the 24th of February 1904, Sital Prasad made a Will in respect of his separated share, by which it is alleged he erased a wakf directing the erection of a dharamshala and a bathing ghat at Etawah and appropriating the income to the upkeep of both. He died a few days after on the 5th of March 1994. On the 12th of September 1904, two applications were made by Banke Behari Lal to the Municipal Board of Etawah for permission to build a bathing ghat on the banks of the Jamna and a dharamshala on the land mentioned in the application in or near the town of Etawah. The two applications are printed at pages 16 and 17(R). With regard to his application relating to the building of the bathing ghat permission was granted by the Municipality. His application about the dharamthala was refused on the ground that the land upon which he proposed to build was nasul land and permission could not be granted to build upon it. Nothing further was done in the matter for some years. Banke Bahari Lal died on the 5th of March 1907. On the 14th of March 1907 Banarsi Das and Sheo Narayan, two of the sons of Sital Prasad, brought a suit against Jai Narayan, Girwardhari Lal and Gar Narayan for cancellation of the Will of the 24th of February 1904 and for the recovery of their share in the estate of Sital Prasad. In the alternative the plaintiffs prayed that if the Will of the 24th of February 1904 was held to be genuine, the directions contained therein should be carried out. The defence to the suit was that the Will was a valid Will and that it created a wakf. In May 1907 an application was made by the plaintiffs for the amendment of their plaint, praying that the allegation with regard to the validity of the Will be eliminated, and that their relief with regard to the maintenance and observance of the wakf be allowed. The amendment was opposed by the defendants unsuccessfully. The case was disposed of on the 29th of June 1907, and the only question before the Court was as to costs as the relief sought by the plaintiff after the amendment was practically admitted by the defendants. A few days prior to the decision of that case Jai Narayan and Rup Narayan brought a saint on the 13th of June 1907 against Banarsi Das for the recovery of Rs. 13,268, of which Rs. 11,934 was the principle and the balance interest, on the allegation that Banarsi Das had taken a loan from his father and the money was payable co the wakf fund. The claim was resisted on the ground that no loan was obtained by Banarsi Das but that the sum in question was a gift by his father to him in his lifetime. The case was fixed for hearing on the 5th of December 1907. On that date the first meeting of the committee constituted by the Will of the 24th of February 1904 was held and certain questions were put by Banarsi Das to the members of the committee for decision. Among the said questions three related to three sums alleged to have been paid to Banarsi Das, to the daughter of Jai Narayan and to the daughters-in-law of the family of Sital Prasad. The three sums were: Rs. 10,000 to Banarsi Das, Rs. 5,000 to the daughter of Banke Behari Lal as kannyadan, and Rs. 4,000 to the daughters-in-law of the family.

(3.) The committee Came to the conclusion that the said three sums were gifts by Sital Prasad to the persons named above. Sheo Narayan, who was a member of the committee, entered his protest against the resolution of the committee. The proceedings of the committee of that date that have been pointed and are before us show that Sheo Narayan objected to one of the resolutions. He has, however, in his evidence deposed that he objected to all the resolutions passed at that meeting and that the word yih has been changed into ek, that is, in other words, the word "these" has been altered into ?one.?