NIRANJAN PRASAD Vs. BEHARI LAL

JUDGEMENT

(1.) This was a suit for recovery of separate possession of a one-third share in certain house property and moveable property. The property originally belonged to Chote Lal the common ancestor of the parties. The pedigree showing the relationship between the parties will be found at p. 17 The plaintiff's case was that the parties and Chhote Lal were members of a joint family and that the property in suit was joint family property. After Chhote Lal's death the plaintiff was maintained by Behari Lal who was the manager of the joint family but in 1924 the defendants refused to give the plaintiff some money and the plaintiff was accordingly compelled to bring this suit for possession of his separate share. The principal defences were that the family was not joint but that the plaintiff's father had separated from the other members of the family before his death in 1898 and the plaintiff himself had been brought up by his father-in-law.

(2.) It was further pleaded that the property in suit was the self-acquired property of Chhote Lal excepting item No. 2 which was the self-acquired property of Behari Lal, defendant 1. The defendants set up a will alleged to have been executed by Chhote Lal on 11 October 1904 by which he had devised items 6 and 7 to Lakhpat Rai and Behari Lal and items 1, 3, 4 and 5 had been dedicated in favour of a family idol, namely, Gangaji. The plaintiff replied that the will was a forgery and that in any case the dedication in favour of the idol was invalid. The trial Court decreed the plaintiff's claim for all the property in suit excepting item 2 which was held to be Behari Lal's self-acquired property.

(3.) The lower appellate Court found that the family had remained joint even after the death of Chhote Lal. As to the will executed by Chhote Lal in 1904 the Court below has found that it was genuine. The property in suit was found to be Chhote Lal's self-acquired property which he was entitled to dispose of by will. As regards the dedication in favour of the idol the Court below found that Chhote Lal had clearly intended to make the dedication and that effect should be given to his intention. The result was that the Court below allowed the appeal and dismissed the suit. In this Court the finding that the will executed by Chhote Lal was genuine is not challenged. As regards the finding that the property in suit was the self- acquired property of Chhote Lal we see no reason to differ from the finding of the Court below. It has been expressly held that there was no presumption that the property acquired by Chhote Lal was joint family property. We hold, therefore, that Chhote Lal was competent to dispose of the property by will.