Chattra Kumari Devi and Another vs Mohan Bikram Shah and Others

Kulwant Sahay, J.—These three appeals arise out of two suits which Were heard together in the Court below: Appeals Nos. 34 and 35 out of Title Suit No. 34 of 1924, and Appeal No. 43 out of Rent Suit No. 4 of 1923. Appeal No. 34 is preferred by defendant 1, Sri 5 Rani Chhatra Kumari Devi, widow of the late Sri 5 Raja Mohan Bikram Shah, and Appeal No. 35 by Maiyan Dalip Rajeshwari Devi, a half-sister of defendant 1 who was defendant 2 in the suit. Appeal No. 43 is preferred by Sri 5 Rani Chhatra Kumari Devi who was plaintiff in Rent Suit No. 4 of 1923. The plaintiff in Title Suit No. 34 and the defendant in Rent Suit No. 4 was Prince Sri 5 Mohan Bikram Shah alias Ram Raja who claimed the Ramnagar Raj and other property as the adopted son of the late Sri 5 Raja Mohan Bikram Shah, the last male holder of the Raj.

As the late holder of the Raj in dispute, and the plaintiff in Suit No. 34 bore the same name, viz., Mohan Bikram Shah, I shall, for the sake of convenience, designate the late holder Raja Mohan Bikram or simply the Raja (though it is a local designation only), the plaintiff in Suit No. 34 as Ram Raja, and defendant 1, who is the appellant in Appeals Nos. 34 and 43 as the Rani.

In order to understand the facts of the case it is necessary to set out a short; history of the family of the plaintiff and of Raja Mohan Bikram. The plaintiff is a member of the royal family of Nepal, and so was the late Raja. The Kings of Nepal and the members of the royal family are described with the prefix Sri 5, and the Prime Minister of Nepal is described Sri 3, the word Sri being repeated five times before the name of the King and the members of his family and three times before the name of the Prime Minister. Sri 5 Maharajdhiraj Rajendra Bikram Shah was King of Nepal. He had two wives, Maharani Shyam Rajeshwari and Maharani Raj Lakshmi Devi. By the senior Maharani, Rajendra Bikram-Shah had two sons, Surendra Bikram Shah and Upendra Bikram Shah; and by the junior Maharani Raj Lakshmi Devi he had two sons, Ranendra Bikram Shah and Birendra Bikram Shah. The elder son Surendra Bikram Shah became King, and the second son Upendra Bikram Shah held the title of Mukhchautaria, with which it will presently be necessary to deal more fully. Upendra Bikram Shah had also two wives, by the junior of whom he had a son Dhirendra Bikram Shah. Dhirendra Bikram married Sri 5 Kanchhi Maiyan Dip Kumari Devi who plays a very important part in the transactions leading to this litigation. She was a daughter of Sri 3 Maharaja Sir Jang Bahadur Rana, the famous Prime Minister of Nepal. By her, Dhirendra Bikram Shah had a son Bhupatindra Bikram Shah, also called Bhupendra Bikram Shah in the evidence. Bhupatindra Bikram had four lawfully married wives and two women who are described in the evidence as unmarried wives. By his first married wife, Sri 5 Tripu Kumari Devi, he had three sons, Sri Mohan Bikram Shah alias Ram Raja, the plaintiff in Suit No. 34 Sri 5 Homendra, Bikram Shah alias Bharat Raja, and Sri 5 Takendra Bikram Shah alias Satrughan Raja. It is not necessary to sot out the names of the daughters. By his second married wife, Sri 5 Chhatra Kumari Devi he had a son Sri 5 Lokendra Bikram Shah alias Thulo Raja, who was the eldest of all his sons and who died in 1897 A.D. By his fourth married wife, Sri Utsav Kumari Devi, he had a son Chandra Bikram Shah alias Lakshman Raja. At the time of the alleged adopt on in 1903, Ram Raja was the eldest surviving son and Lakshman Raja was the next in seniority amongst the sons of Bhupatendra. Ranendra Bikram Shah the third son of Maharaja Rajendra, Bikram Shah died without any male issue, leaving a widow named Ranendra Raj Lakshmi Devi. Sri 5 Birandra Bikram Shah, the youngest son of the Maharaja Rajendra Bikram, had two wives, Bodhkumari who was the daughter of Raja Prahlad Sen, zamindar of Ramnagar in British India, and Brij Raj Lakshmi Devi. By his wife Bodhkumari, Birendra Bikram Shah had a son Sri 5 Mohan Bikram Shah who acquired the Ramnagar Estate from his maternal grandfather, and was known as Raja.

He married four wives one after another, viz., Rani Raj Kumari Devi, Rani Bal Kumari Devi, Rani Bishun Kumari Devi and Rani Chhatra Kumari Devi, of whom the last survived him and is defendant 1 in Suit No. 34. By his second wife, Brij Raj Lakshmi Devi, Birendra Bikram had three daughters, of whom one died in infancy, one Deoraj Lakshmi married the Raja of Basti and the last Bhuban Raj Lakshmi Devi also married the Raja of Basti. Bhuban Raj Lakshmi Devi is thus stepsister of Raja Mohan Bikram Shah and plays an important part in the present case. To complete the genealogy it may be added that Surendra Bikram Shah, King of Nepal, had two sons Sri 5 Maharajadhiraj Trailokya Bikram Shah who died in the lifetime of his father, and Sri 5 Narendra Bikram Shah by his senior and junior wives respectively. This Narendra Bikram Shah lives in India and plays some part in the evidence in the case. Trailokya Bikram Shah had two wives of whom the junior was Sri Lalit Raj Lakshmi Devi, a sister of, and on very intimate terms with, Kanchha Maiyan Dip Kumari Devi. By her Trailokya Bikram had a son Prithvi Bir Bikram Shah who succeeded Surendra Bikram as King of Nepal and who was himself succeeded by his son, the present King of Nepal, Sri Maharajadhiraj Tribhuban Bir Bikram Shah, a young man of about 20, who became King in 1927 A.D.

It is not necessary to go deeply into the history or the politics of Nepal. It is enough to say that about 1846 or 1847 Jang Bahadur Rana, uncle of Sri 5 Chandra Shamsher Jang Bahadur, the present Prime Minister of Nepal, established himself as Prime Minister and Commander-in-Chief of Nepal; Maharani Raj Lakshmi Devi who had sought the succession for her son was expelled from Nepal and came to Benares in India with, her two sons Ranendra Bikram Shah and. Birendra Bikram Shah. The King Rajendra Bikram Shah accompanied her to Benares and his son Surendra Bikram Shah was proclaimed King. Hitherto the Kings of Nepal had been absolute monarchs, but from this time they became constitutional monarchs and large powers, or as the witnesses state supreme authority" were vested in the Prime Minister who acts in a Darbar (a sort of Council) of then high dignitaries of State. Rajendra Bikram however was permitted to return to Nepal after spending some time in Benares. Maharani Raj Lakshmi brought with her a large quantity of jewels from Nepal which were seized by the British Government at the request of the Nepal authority. Eventually it appears that a sum of Rs. 6,60,000 was given to the Maharani Raj Lakshmi Debi by the Nepal Government through the British Government. There was a partition between her and her two sons and the sum was divided equally between them, each taking Rs. 2,20,000. Thereafter Rajendra Bikram and Birendra Bikram continued to reside in Benares. Kanchha Maiyan Dip Kumari Devi when widow of Dhirendra Bikram Shah also lived mostly at Benares, although she had got property and a house in Nepal which she frequently visited. Her son Bhupatendra had his establishment in Nepal where he was an officer of Government but in 1902 his son Ram Raja was living in Benares with his grandmother whose special favourite he was.

The subject-matter of dispute in the present litigation consists of two classes of properties, the first of which is a landed estate in the Districts of Champaran and Saran which may be called the Ramnagar Raj proper, which belonged to Raja Prahlad Sen who died in 1879, and which he bequeathed by will to his daughter''s son Raja Mohan Bikram. The widows of the testator seized it and it was only in 1887 that probate of the will was secured against opposition of the younger widow Nauruch Debi and Padamraj and only in 1898 that the claims of Padamraj were negatived, as the judgments of the High Court of Calcutta show. The second class are situated in the District of Benares and in the town of Benares and Raja Mohan Bikram inherited them from Maharani Raj Lakshmi Devi who had acquired them out of Rs. 2,20,000 allotted to her as her share of the Rs. 6,60,000. It will be necessary to consider the nature of the title acquired by the Raja in these two classes of properties.

Raja Mohan Bikram Shah was addicted to drink and intoxicating drugs. His servants and he underwent Sessions trial for rape and other offences in 1899. By 1901 he had completely ruined his health and his right arm was paralyzed. Two of his wives, viz., Rani Raj kumari Devi and Rani Bal Kumari Devi were dead, they having died in 1901 and 1888 respectively, and of the others Rani Bishun Kumari Devi was not in his good graces, while the youngest Rani Chhatra Kumari whom he married in 1890 was his favourite wife and had admittedly great influence over him. His only issue was a son by her who died within six days of his birth in 1897. The Raja had little hope of getting a son, and from the evidence there can be no doubt that he contemplated adopting a boy from the royal family of Nepal as his son.

On 10th October 1901, the Raja executed a will which gives an indication of his intention to adopt. Therein he recited the fact that he had no son or daughter and provided that:(1) if at the time of his death there be living any son born of the womb of any of the Ranis, that son will be the proprietor and possessor of all his property; (2) if he adopted a boy in his lifetime and that boy be alive at the time of his death, such adopted son will be the proprietor of his property; (3) if he his no son by any of the Ranis at the time of his death, or he does not adopt a son or if he does adopt a son who died in his lifetime, then after his death Rani Chhatra Kumari Devi shall have the power to adopt a boy from the royal family of Nepal, and if his son or the adopted son be a minor at the time of his death then during his minority Rani Chhatra Kumari will manage the whole of his property; (4) that if he left no natural or adopted son, then up to the time of her adopting a son the Rani Chhatra Kumari Devi will be the proprietress (malik) of the whole of the property, but she will have no power to transfer, mortgage or in any way dispose of the property. The will then recited that he was displeased with Rani Bishun Kumari Devi and that he had given her five villages under a mokarrari patta, dated 15th May 1393, for her lifetime and that there was no necessity to make any arrangement for her maintenance etc. The will then provided (5) that if there be no natural or adopted son then, after the death of Rani Chhatra Kumari Davi, his property will go to the person entitled to get it according to the Shastras, and (6) for the marriage of a daughter if any born to him, and referred to certain charitable and religious endowments which had already been made by him.

This will was executed on 10th October 1901, but it was not registered until 15th April 1902, on which date another document viz., a supradnama executed by the Raja on 14th April 1903, in favour of Rani Chhatra Kumri was also registered By this instrument the Raja made over all his properties appertaining to the Ramnagar Raj to Rani Chhatra Kumari for the term of her life, with provision that she should remain in possession of the whole of the estate properties and manage the same for the Raja, but that she shall have no power to sell or make a gift of any of the properties. It give power to her to execute mortgage, hypothecation, zarpeshgi, usufructuary and thica-patta deeds in respect of the properties in her possession in consultation with and subject to the consent of the Raja. She was to pay to the Raja from the income of the estate a sum of Rupees 2,000 per mensem for his personal expenses, and a sum of Rs. 150 per mensem to Rani Bishun Kumari Devi, and to take Rs. 25 per mansem for her own personal expanses. The Raja was at this time rather heavily in debt and he was unable to manage his own properties properly on account of his ill-health and it is stated that this supradnama was executed in favour of Rani Chhatra Kumari because she was thought capable of administering the estate.

The plaintiff''s case is that in the year 1902 his grandmother Kanchhi Maya was living at Benares in her house at Baruna Bridge, and the Raja was also living at Benares in his house in the quarter known as Manurganj and the Raja used to go to Kanchhi Maya, who was the wife of his cousin Dhirendra Bikram Shah and there he used to see the boy Ram Raja, who was then eight or nine years of age. He had a desire to take a boy in adoption and he proposed to Kanchhi Maya that the boy Ram Raja be given to him for that purpose. Kanchhi Maya according to the plaintiff expressed her inability to agree to the proposal without the consent of her son Bhupatendra Bikram Shah the father of the boy and also without the sanction of the Prime Minister and de facto ruler of Nepal, inasmuch as the boy being a member of the royal family of Nepal could not be given in adoption to anyone without the sanction of the Prime Minister. The plaintiff''s case is that Sri 3 Maharaja Chandra Shamsher Jang Bahadur, the Prime Minister, happened to go to Benares towards the end of December, 1902, on his way to the Coronation Darbar held in Delhi by Lord Curzon in the beginning of 1903. He was accompanied by Bari Maharani and by his own wife and other ladies from Nepal. He stayed for two or three days in a house belonging to the Maharaja of Benares called the Nandeshwar Kothi. The plaintiff asserts that, while the Prime Minister was staying at Nandeshwar Kothi, Raja Mohan Bikram went to see him with his two Ranis and his sister Bhuban Raj Lakshmi and at that time his grandmother Kanchhi Maya and his father Bhupatendra Bikram were also at Nandeshwar Kothi. The plaintiff''s case is that there Raja Mohan Bikram Shah asked the Prime Minister for sanction to adopt Ram Raja and that the ladies being agreeable the Prime Minister asked Raja Mohan Bikram to obtain the consent of the boy''s father Bhupatendra, that such consent was asked for in the presence of the Prime Minister and other persons and that Bhupatendra gave his consent on condition that the Raja agreed to convey all his properties to Ram Raja and to cancel the two documents, viz., the will and the supradnama already executed by the Raja in favour of Rani Chhatra Kumari. The Raja is said to have agreed with the reservation that he will have a life-estate and to have asked the Prime-Minister for sanction, whereupon the Prime Minister stated that he was in a hurry and that he would send the formal sanction on his return to Nepal. It may be mentioned that the plaintiff''s case is that the Raja had also asked the Prime Minister to give him any other boy from the royal family of Nepal if for any reason Ram Raja could not be given to him. The plaintiff''s case is that the Prime Minister on his return to Nepal sent a formal letter of sanction, dated 19th January 1903, (certified copy whereof has been marked Ex. 20 in the case), that in accordance therewith the Raja executed on 26th May 1903, a document, which describes itself as a will but which the plaintiff asserts is a deed, where by he cancelled the will of 1901 and the supradnama, reserved a life-estate for himself gave a vested remainder to Ram Raja, with the proviso that if a natural son be born to him that natural son will be the owner of the property and made the will irrevocable and that oh 31st May 1903, the Raja took the plaintiff Ram Raja in adoption in the dattaka form in, his Mamurganj house in Benares, from which date both the Raja and defendant 1. Rani Chhatra Kumari began to treat Ram Raja as their adopted son.

Raja Mohan Bikram Shah died at Calcutta on 18th April 1912, leaving no issue of has body, and the plaintiff asserts that, under terms of the instrument of 26th May 1903, he then became entitled to possession of the entire Ramnagar Raj. Defendant 1 however propounded a will dated 25th January 1904, which purports to revoke the will, the instrument of 26th May 1903, and to revive the will of 1901 and which, she asserted, altogether disinherited Ram Raja (whose alleged adoption she also denied) and left the property to his natural son, if any, living at the time of his death or ''to an adopted son, if he did adopt any, and, in the absence of either a natural or an adopted son, to the Rani Chhatra Kumari Devi with permission to her to adopt a son. The Rani applied in June 1912 to the District Judge of Muzafarpur for probate of this will. It had been executed in Calcutta and had been deposited in a sealed cover with the Registrar of Deeds and Assurances, Calcutta, Caveat was entered by Ram Raja who was unaware of its execution, and subsequently a petition of objection was filed by him in which he set up his adoption and alleged that the will propounded by the Rani was not the will of the "late Raja who was seriously ill and was not of sound disposing mind on the date when the will was alleged to have been executed, and further that, at the time of the alleged execution of the will, the Raja was in so feeble a state of health as to be unable to resist the importunities and undue pressure of Rani Chhatra Kumari, so that the Raja, if he did actually execute the will, did so merely to purchase peace and would not have executed it but for the importunities and undue pressure on the part of the Rani. The probate Court found that the will was the last will and testament of the Raja and granted probate. The learned District Judge however in the course of his judgment, came to the finding that the adoption set up by Ram Raja had been established.

An appeal was filed by Ram Raja to the High Court of Calcutta against the decision of the probate Court, and cross-objections were filed by the Rani on the question of the adoption. The appeal was however dismissed by the Patna High Court to which it had been transferred on its establishment, on 22nd May 1917, on account of the default on the part of the appellant Rama Raja, and the cross-objections of the Rani to the finding as to adoption were also dismissed.

The present suit was instituted on. 15th April 1924, just three days before the expiry of 12 years from the date of the death of the Raja, and the plaintiff claimed an adjudication and decision that he being validly adopted by the late Raja Mohan Bikram Shah was entitled to all the properties mentioned in Schedules A and E attached to the plaint, that the defendant Rani Chhatra Kumari was not entitled, to take any son in adoption, that a perpetual injunction might be issued restraining her from taking another son in adoption, for construing the wills dated 12th October 1901, 25th January 1904, and the instrument dated 26th May 1903, and for directions as regards the administration of the estate in accordance with those instruments and for possession of the properties set out in Schedules A and E and of any other property that may be found on discovery to appertain to the estate of the late Raja, for mesne profits and accounts, and for the appointment of a receiver pendente lite. Besides Rani Chhatra Kumari there were other defendants also in the suit. Defendant 2, Maya Dalip Rajeshwari Devi and defendant 3 Rani Tirath Kumari Devi, the stepsister and the stepmother of the Rani Chhatra Kumari were made defendants in the suit inasmuch as certain sums of money were held in deposit in certain banks in their names, and certain properties stood in the name of defendant 2 which the plaintiff claimed to be the property of the Raj to which he was entitled. Defendants 4, 5, 6 and 8 were the banks where money were kept in deposit by the Rani and defendant 7, Lakshmi Maharani, the sister''s daughter of defendant 1, was made a party, as certain deposits stood in her name also, which, the plaintiff claimed, appertained to the Ramnagar Raj.

The defence of Rani Chhatra Kumari was a total denial of the agreement and the adoption set up by the plaintiff. Her case was that her husband, the late Raja, never approached Kanchhi Maya or the Prime Minister with the request to give Ram Raja to him for the purposes of adoption, that the Raja was heavily in debt and was trying to raise money and he approached Kanchhi Maya for a loan of Rs. 2,00,000, that Kanchhi Maya had imposed a condition that the Raja should execute a will leaving his properties to her grandson Ram Raja after his death and that it was on that condition that she agreed to advance the loan, that the Raja agreed to execute the will simply with the object of securing the loan from her, that at first she promised to advance it on interest of 3� per cent, per annum and did actually advance a sum of Rs. 10,000 on a hand-note dated 19th May 1903, executed in favour of two of her servants Dwarka Das and Lal Bahadur at 3� per cent., that the will was executed on 26th May 1903, in accordance with the condition imposed by Kanchhi Maya as a condition precedent to the advancing of the loan, that on 30th May 1903, Kanchhi Maya advanced another sum of Rs. 42,000 that she advanced further sums in July and October 1903, and she paid the balance of Rs. 1,10,500 in November 1903 and got a usufructuary mortgage deed executed in her favour by the Raja on that date for a sum of Rs. 2,00,000, that in this dead the interest was raised from 3� per cent to 4� per cent and that this irritated the Raja and he accordingly executed the will on 25th January 1904, of when she has obtained probate after a hard fight with Ram Raja that Rama Raja was not the adopted son and that he was not entitled to the possession of the properties and that under the will of 1904 she was entitled to retain possession of the property and had the power to adopt a son. There were several other objections such as that the suit was not maintainable and that it was barrel by limitation, which formed the subject-matter of issues framed by the Subordinate Judge.

The learned Subordinate Judge found in favour of the plaintiff on almost all the issues raised in the case and gave him a decree substantially in accordance with the claim. Defendant 1 has, as stated above, filed Appeal No. 34 of 1928 against the decree of the Subordinate Judge, and defendant 2 has filed Appeal No. 35 of 1928 against that portion of the decision of the learned Subordinate Judge which decides that the money standing in her name belonged to the Raj.

The third appeal No. 41 of 1928, arises out of the suit for realization of the rent due under the sadhaua-pataua deed for Rs. 2,00,000, executed by the Raja in favour of Kanchhi Maya. Kanchhi Maya being dead. Ram Raja is in possession of the properties given in sadhaua-pataua, and the Rani claims the rent reserved in that deed from Ram Raja. The defence of Ram Raja is that he is the owner of the property. The result of this suit therefore depends entirely upon the decision of the title suit of Ram Raja. If it is found that Ram Raja is entitled to the property, the rent suit must fail. If on the other hand, it is found that Ram Raja has no present title to the Raj, the Rani is entitled to a decree for rent.

The principal points for determination in the main appeal of the Rani, viz., Appeal No. 31 of 1928, are:

Whether there was any agreement; if so, what was the agreement and what were the legal effects thereof.

Whether there was an adoption in pursuance of the agreement.

What is the true nature of the instrument of 26th May 1902. Is it a deed or will?

What is the true construction of the will of 1901 and 1904?

Is the claim or any portion thereof barred by limitation?

These are the main points to be determined in this appeal, and in dealing with them it is necessary to consider certain other points arising out of them. The evidence on the first two questions is intermingled. The two points therefore viz. whether there was an agreement and if so, what was the agreement and whether there was an adoption in pursuance thereof, may be conveniently considered together.

The learned Subordinate Judge has dealt with the evidence on these two points in great detail. A large mass of evidence, both documentary and oral, has been produced on both sides, and on perusal thereof the impression left on one''s mind is that a good deal of false evidence has been adduced on both sides; there has been hard swearing by witnesses who in some cases have spoken patent falsehoods; there has been a suppression of important evidence, on both sides; a large number of the witnesses examined on both sides are such that upon their testimony no Court would be justified in coming to a finding one way or the other; and the only safe course to adopt is to ascertain the facts from the documents regarding the authenticity of which there can be no manner of doubt and to believe the oral evidence only in so far as it is consistent with such documentary evidence.

The case of the plaintiff is that there was first a proposal by the Raja to Kanchhi Maya to give him the boy Ram Raja in adoption. Kanchhi Maya expressed her inability to do so without the consent of the father of the boy and without the sanction of the Prime Minister of Nepal. The Prime Minister with the royal ladies from Nepal is said to have gone to Benares towards the end of December 1902, and there it is said that the Raja approached him for permission to adopt Ram Raja, that Bhupatendra, the father of Ram Raja, agreed in the presence of the Prime Minister to give his son in adoption on the condition that the Raja should convey all his properties to Ram Raja and should cancel the deeds already executed by him in favour of the Rani Chhatra Kumari. The Raja is said to have accepted this term with the reservation that he would have a life-estate in the properties. Bhupatendra agreed to this reservation and the sanction of the Prime Minister was asked for. The Prime Minister however did not accord his sanction while in Benares and he went to Delhi to attend the Coronation Durbar, while the royal ladies with Kanchhi Maya went on pilgrimage to various'' places.

Bhupatendra is said to have accompanied the Prime Minister up to Mogal Sarai, the next railway station from Banares, and from there to have returned to Banares, and it is alleged that the Raja wrote a letter enclosed with one of Bhupatendra to the Prime Minister at Delhi asking him to give another boy from the royal family of Nepal if Ram Raja could not be given to him, and the Prime Minister is said to have sent a reply again enclosed with a letter to Bhupatendra to the effect that the matter will be considered on his return to Nepal. On his return to Nepal the Prime Minister is said to have called a meeting of the Darbaris of Nepal, Bhupatendra being in the Darbar, and there it was decided that sanction should be accorded to the Raja to adopt Ram Raja and a formal letter of sanction (Ex. 20) was sent by the Prime Minister to the Raja.

The exact nature of the agreement set up is set out by the plaintiff in para. 4 and the succeeding paragraphs of the plaint, and in accordance with this agreement and the sanction of the Prime Minister, the instrument of 26th May 1903 was executed and made over to Kanchhi Maya who sent it to the Prime Minister at Nepal, and the formal adoption took place on 31st May 1903. (The judgment considered the incidents relating to agreement and adoption and proceeded.) An argument was advanced by Mr. Langford James that no evidence was given about the loss of these documents or of search for them and therefore secondary evidence of them was not admissible. It is true that no witnesses were examined to prove the loss of the documents from the custody of the British Envoy at Nepal; but we have the correspondence which passed between the Subordinate Judge and the British Envoy. The original documents were produced by the plaintiff and were in the custody of the Court. The Court transmitted those documents to the British Envoy for the purposes of the examination of certain witnesses on commission. The documents must therefore be considered to be in the custody of the Court when they ware lost and the plaintiff could not be expected to give any formal evidence of the loss nor was it necessary for him to do so. The Court could take judicial notice of facts, transpiring in Court, and I am of opinion that there is no substance in the objection that the certified copies of the documents cannot be used in evidence. (After considering the evidence the judgment proceeded.) Under the circumstances, I am of opinion that the document, namely the will of 1903 must have been and was executed with her knowledge and consent and the original agreement was considered to have been sufficiently carried out by the execution of the will of 1903 with its provision of irrevocability, as to the binding character of which there was no misgiving on the part of any of the persons concerned. We thus find that there was an agreement which finally took the form contained in the will of 1903 and the plaintiff asserts that in pursuance thereof he was taken in adoption on 31st May 1903, in the Mamurganj house of the Raja at Benares. (After fully considering the evidence, His Lordship held that the adoption set up by the plaintiff has been proved.) A grievance was made by learned Counsel for the appellant that some of her evidence had been shut out. What happened was that the plaintiff gave notice to the defendant seeking discovery of documents which were in her possession or, power in response to which she filed a petition which was taken to be a refusal on, her part to make discovery of the documents.

Thereupon the learned Subordinate Judge (not the trial Judge) by his order No. 61 in the order sheet, dated 3rd February 1925, made an order precluding the defendant from producing any new document from her custody in support of her case. He however gave permission to the plaintiff to take legal steps for the production of "any document of which he is aware to be in defendant''s custody. This order was made in February 1925 and the suit was not finally heard until some time in the year 1927, and although plaintiff was allowed to produce all his evidence, the defendant was shut out from producing any document after that date. The order of the learned Subordinate Judge does not appear to have been justified by the provisions of Order.11, Rule 21, Civil P.C. The defendant, if she failed to comply with an order for the discovery of documents, was liable to have her defence struck out and to be placed in the same position as if she had not defended the suit. It did not justify the Court in shutting out all evidence although she was allowed to defend the suit. The grievance however does not appear to be a genuine one, because, I asked learned Counsel for the appellant if he desired to give any fresh evidence and he stated that he did not desire to do so.

The adoption of Ram Raja having been held to be established, and it being further held that the adoption was in pursuance of an agreement to be found in the document of 26th May 1903, the next point for determination is, what right and title, if any, did the plaintiff Ram Raja acquire by the adoption. The plaintiff''s case is that he acquired a title to the properties which entitled him to take possession after the death of the Raja, and to institute a suit for possession within 12 years of the death of the Raja. The defendant''s case is that no title was acquired by the plaintiff who acquired only the right to sue for specific performance of a contract, the period of limitation for which is three years or at most six years from the death of the Raja, and the suit of the plaintiff is therefore hopelessly barred by limitation. In determining this question, the first point that requires consideration is the nature of the document executed by the Raja on 26th May 1903.

Mr. Pugh for the plaintiff argues that the document of 1903, though it speaks of itself as a will is really not a will but a deed which gave a title in praesenti to Ram Raja. The learned Subordinate Judge has found that the document is only a will and not a deed and, in my opinion, his finding is correct and I generally agree with the reasons given by him. Mr. Pugh has argued that it is a deed inasmuch as it had present operation since it revoked the supradnama; inasmuch as it is expressly described to be irrevocable and an irrevocable will has the same effect as a deed; inasmuch as it states that the Raja has made bakhshish or gift of the properties to Ram Raja, that is to say, a complete gift with but a life-interest reserved to the executant and a defeasance clause in favour of a natural-born son of the executant, and reservation, of a life-interest is a mark of a deed; and inasmuch as a present gift is made of certain properties to the Ranis and an annuity is fixed for them. In my opinion none of these grounds is sufficient to lead us to hold that the document is a deed having, present operation rather than a will. The document is called a will; it was registered as a will, every party concerned treated it as a will, no stamp duty was paid upon it which would be necessary if it be considered a deed, and it purports to deal with properties which the executant might acquire in future. The document ho doubt purports to revoke the supradnama of 14th April 1902, but it could not legally have that effect inasmuch as the supradnama was a document in which two parties were concerned and it could be cancelled only by another document with the consent of both parties.

The Rani Chhatra Kumari was not a party to this document as an executant thereof. She, no doubt, signed it as a witness but whatever her intention and that of the other parties in that regard may have been, that would not give to the document the legal effect of a deed to be operative in praesenti. No doubt the Rani agreed not to enforce her rights under the supradnama, but the document of 1903 cannot be called a deed because it purports to revoke another deed which in law it could not do. No doubt it is described to be irrevocable; but there are many instances of wills which have, under agreement of the executant with other persons, been made irrevocable in favour of the latter but which have subsequently been revoked by the executant, and such revocation has been accepted by probate Courts as valid on the footing that the documents though expressed to be irrevocable were no more than wills, and a will is always revocable in spite of describing itself as irrevocable. The use of the expression "bakhshish kia" which literally means "made a gift" hardly entitles the plaintiff to a finding that the instrument is a deed. It would seem to be equivalent to saying that he gives or bequeaths his property to Ram Raja, the intention clearly being that the gift or bequest should come into effect after the death of the testator and not in praesenti. In almost every will written in the vernacular one comes across the expression that the testator will remain the malik or owner of the property during his lifetime, and such a recital in a will has never been interpreted as constituting the document a deed and not a will. As to any other gift, of property or of an annuity to come into operation under the terms of the document there appears to be none; the document refers to certain previous transactions by which certain property had already been given to the Ranis and it only confirms the same, the matter of the Ramnagar bazar not being indicative as it was already held by appellant on unregistered grant. The document expressly states that certain monthly allowances were then being paid by the testator to the Ranis and the testator merely expressed his desire that those payments should be continued by the future proprietor of the estate.

Reference is made by learned Counsel for the respondent to certain cases where documents purporting to be wills have been declared to be deeds. But the question depends on the construction of each document, and one document could only, be construed with the help of another if the terms and circumstances are exactly similar. In Chunder Mohinee Dossee v. Hurrosoondaree Dossee 3 W.R. 200 the document was construed as making a present gift of the property during the testator''s lifetime, and to be a deed of absolute gift and not a will with reference to the conduct of the testator and the surrounding circumstances.

In Umrao Singh v. Lachhman Singh [1911] 33 All. 344, the document was held to be a family arrangement arrived at by the mediation or arbitration of two gentlemen who were friends of the family and interested in its owner, and was hold to be intended to be operative immediately and to be final and irrevocable.

In Sita Koer v. Munshi Deo Nath Sahay [1904] 8 C.W.N. 614, Maclean, C.J., no doubt said that one of the tests in these cases is to ascertain whether the document is revocable or not and that that was a primary test, but the decision of the case pended on the construction placed upon the document before the learned Judges and not merely on the point that the document was irrevocable, and. Mookerjee, J., distinguished that case in Sagar Chandra, Mandal v. Dwarka Nath Mandal [1909] 3.I.C. 380, where it was held that if an instrument was of a testamentary character the mere fact that the testator called it irrevocable did not alter its quality, and the principal test is whether the disposition made takes effect during the lifetime of the executant of the deed or whether it takes effect after his death.

It is not necessary to refer to all the cases cited on behalf of the respondent; it is sufficient to say that on a true construction of the document it must be held to be a will and not a deed.

It is convenient here to deal with the question of the nature of the property, to wit, whether it was ancestral property of the Raja in which the adopted son acquired a right by the fact of adoption, or whether it was his self-acquired property, which he could deal with and alienate even after the adoption.

As already stated, two classes of properties form the subject-matter of the suit, namely the Benares properties and the Ramnagar properties. As regards the former, we know that, they were purchased, by Maharani Raj Lakshmi Debi out of the Rs. 2,20,000 which she got by division between herself and her two sons. Ex. 65 is the agreement dated 10th February. 1851 whereby she and her sons agreed to divide the property in equal shares. Exs. 81, 81-A and 81-B are the three receipts each for a sum of Rs. 2,20,000 granted by the Rani and her two sons to the agent, Benares, in respect of the payments made to them under orders of the Nepal Darbar. Ex. WW is a will dated 5th March 1887, executed by Rani Raj Lakshmi Devi, making wakf of the Mamurganj houses acquired by her and of other properties; and Ex. QQ is another will of the same date in respect of money belonging to her. The Raja however on the death of Rani Raj Lakshmi ignored these wills, and took possessions of the properties as next heir and there after held possession thereof as the owner. These properties can in no sense be treated as the ancestral properties of the Raja.

As to the Ramnagar properties, we know that they belonged to Raja Prahlad Sen, who had two wives, Rani Bindabasni Devi and Rani Nauroch Devi. He had a daughter Bodhkumari by his wife Nauroch Devi who was married to Birendra Bikram Shah and was mother of Raja Mohan Bikram Shah. Raja Prahlad Sen bequeathed the entire estate to Raja Mohan Bikram by the will dated 31st August 1876, of which he obtained probate after the death of Raja Prahlad Sen and has been in possession since then. This estate also therefore must be held to be the self-acquired property of the Raja.

Mr. Pugh faintly argued that the property acquired from maternal grandfather is ancestral property, and he referred to Venkayyamma, Garu v. Venkataramanayyamma Bahadur Garu [1902] 25 Mad. 678, Karuppai Nachiar v. Sankaranarayan, Chetty [1904] 27 Mad. 300, Vythinatha Ayyar v. Yeggia Narayana Ayyar [1905] 27 Mad. 382, but we have a decision of our own Court in Bishwanath Prasad Sahu v. Gajadhar Prasad Sahu [1917] 8 Pat. L.J. 168. It is directly in point and it must be held that the Ramnagar property was also the self-acquired property of the Raja.

The Ramnagar Raj thus being the self-acquired property of the Raja and the document of 1903 being held to be a will, it was open to the Raja to convey the property to any one even after the adoption unless a legal right was created by the agreement which we have held to be established in favour of the adopted son. In the absence of such agreement title would pass to the Rant under the will of 1904 of which probate has been granted as the last will of the Raja. The Rani is thus in possession under a title which has as its basis the will of 1904;

The question of importance is whether the adopted son Ram Raja had acquired a legal title under the agreement of 1903. In this connexion a very learned argument has been addressed to us on both sides and a large number of English as well as Indian cases have been referred to. Upon the evidence we have found that there was an agreement under which the Raja agreed to convey his property to the adopted son keeping a life-estate for himself with a proviso that if a natural son was born to the Raja, then that son will take the estate and not the adopted son. In pursuance of this agreement the Raja executed his will of 1903 and therein gave up all right to make another will. On the terms therein set out, including the most important term of irrevocability as to the legality of which none of the persons concerned had the least misgiving Ram Raja was given in adoption to the Raja. The contract was thus completely performed. Bhupatendra and Kanchhi Maya performed their part of the contract by giving the boy in adoption and the Raja performed his part of the contract by executing the irrevocable will. Under this will the adopted son acquired the right to take possession of the property immediately on the death of the Raja provided no natural born son was living at the time of his death. The subsequent execution of the will of 1904 with the object of disinheriting the adopted boy and of giving a life-estate to the Rani could not in law take away the title which was created in favour of the adopted boy under the completed contract.

It is contended that the right secured by the plaintiff was merely a right to sue for specific performance of the contract, a remedy now long barred by limitation. In my opinion the right of the plaintiff was to sue for possession of the property immediately on the death of the Raja. The possession of the Rani and her refusal to make over possession to Ram Raja had the effect of making the Rani''s possession adverse to that of Ram Raja, and under Article 144, Lim. Act, the plaintiff Ram Raja had 12 years to institute the suit for possession from the time when the possession of the defendant became adverse to the plaintiff. The suit having been instituted within 12 years from that date which was the date of the death of the Raja, is within the period of limitation and the plaintiff is entitled to a decree for possession.

It is not necessary to deal at length with all the numerous cases cited by the parties. It is contended on behalf of the appellant that it was always open to the Raja to revoke the will of 1903 in spite of his explicit statement therein that the will was irrevocable. There can be no doubt about the correctness of his proposition. As was observed in Walker v. Gaskil[1914] P. 192 a will in this country is by its very nature and in its very essence a revocable instrument, and the following observations are quoted from the judgment in Vynior''s case [1610] 3 Co. Rep. 81-b:

If a man make his testament and last will irrevocably, yet he may revoke it; for his acts or his words cannot after the judgment of the law, to make that is revocable which, of its own nature, is revocable.

It was open therefore to the Raja to revoke the will of 1903 qua will. But the revocation thereof cannot take away the right created under the contract which was completed by the execution thereof and the receipt of full consideration.

It is next contended that by the revocation of the will of 1903 there was a breach of the contract on the part of the Raja, an 1 the remedy of Ram Raja was to sue for specific performance of the contract of which there had been a breach. To this it is replied that the remedy was not to enforce the contract by way of specific performance but to enforce the equities arising out of the contract which had been completely performed. Ram Raja could not seek for the specific performance of the contract inasmuch as he was not a party thereto; all he could do was to seek to enforce the equitable right created in his favour thereunder. This view is supported by the observations of the Privy Council in Khwaja Muhammad Khan v. Hussain Begum [1911] 32 All. 410, where in the course of the judgment Mr. Ameer Ali said:

Their Lordships desire to observe that in India and among communities circumstanced as the Mahomed (sic) among whom marriages are (sic) for minors by parents and guardians, it might occasion serious in justice if the Common Law doctrine was applied to agreements or amusements entered into in connexion with such contracts.

These observations would apply in the case of Hindu also where agreements in connexion with marriages and adoptions of minors are entered into by their parents and guardians. A person who is not a party to the contract cannot ordinarily sue for specific performance of the contract, but where a third person acquires some benefit under the contract he is entitled'' to enforce such benefit by way of equitable relief, and what the Courts enforce in such circumstances is not the contract itself but the equities arising out of the contract.

In Lakshmi Venhayyamma Rao v. Venkata''(sic) Appa Rao AIR 1916 P.C. 9 there was a mere promise by the Rani to convey the property to her grandniece and she wrote a letter to her in which she said that the property had been purchased for her alone, that the Rani should retain it so long as she was alive and afterwards convey it to her. This was held to be a completed contract sufficient to entitle the plaintiff to sue for possession. In Synye v. Synge [1894] 1 Q.B. 466 the plaintiff claimed damages, but if she had waited till the death of her husband there is no doubt that she would have been entitled to sue for possession and a decree would have been made for possession.

Stone v. Hoskins [1905] P. 194 was a case of mutual wills which were executed in pursuance of an arrangement between two persons as to the disposition of their property, and it was held that one of them who predeceased the other does with the implied promise of the survivor, that the arrangement shall hold good and if the survivor, after taking a benefit under the arrangement, alters his will, his personal representative takes the property upon trust to perform the contract, for the will of the one who has died first, has by the death become irrevocable. It is contended on behalf of the appellant on the authority of this case that the Rani in the present instance took the property upon trust to perform the contract, and that the remedy of Ram Raja was to sue for the specific performance of that contract. But the contract made was to secure the property to Ram Raja at the death of the Raja and the Rani is a trustee for the performance of that contract, viz., the contract to secure possession of the property to Ram Raja, and the plaintiff Ram Raja has the right to bring a suit for possession and not merely for the specific performance of a contract to execute a conveyance. In fact the specific performance of the contract in the present case would be the making over of the property to Ram Raja, and a suit of such a nature is governed by Article 144, Lim. Act.

The argument that the remedy open to Ram Raja was to sue for the execution of a conveyance by the Rani in his favour is not sound inasmuch as a title was created in Ram Raja by the completed performance of the contract, and no fresh conveyance was necessary.

It is contended by Mr. Pugh for the respondent that in this country there is no difference between an equitable and a legal title and he refers to Webb v. Macpherson [1904] 31 Cal. 57. Mr. Langford James for the appellant points out that the decision in that case was that in India a legal title was created by statute, viz. Section 55, T.P. Act, and that the observation in the judgment that the law of India knows nothing of the distinction between legal and equitable property in the sense in which that was understood when equity was administered by the Court of Chancery in England is obiter dicta. I am of opinion that Mr. Pugh''s contention is right, and generally speaking there is no distinction in India between a legal and equitable title and both stand on the same footing as regards the enforcement of rights acquired thereunder.

An argument was advanced by Mr. Langford James that the agreement set up by the plaintiff was the alleged agreement at the Nandeshwar Kothi and that agreement was different from the agreement evidenced by the will of 1903, that the will of 1903 was an offer or proposal by the Raja in respect of a new agreement which was different from the agreement alleged by the plaintiff, and there is no evidence that this offer was ever accepted or that a contract was ever created which could be enforced. It is clear that all parties concerned accepted the execution of the will of 1903 as a sufficient performance of the contract originally entered into at the Nandeshwar Kothi, and the case falls within Section 63, Contract Act. Mr. Langford James argues that such a contract was not pleaded in the plaint; but on reading the plaint it is clear that the contract set up was not confined to that made at Nandeshwar Kothi. The will of 1903 was recited in the plaint and described as

an instrument containing the material terms and conditions of plaintiff''s adoption, and as executed though in varied form in pursuance of the agreement

of Nandeshwar Kothi, and when all the necessary facts are set out in the pleadings, it is for the Court to ascertain what the actual contract entered into between the parties was.

In this view of the case it is not necessary to go into the question whether any specific trust was created in favour of Ram Raja so as to bring in the operation of Section 10, Lim. Act, or to hold that there was no period of limitation prescribed to enforce the trust. It is doubtful whether Section 10 does apply to the facts of the present case or whether any specific trust was created in favour of Ram Raja, but as I have said, it is not necessary to consider that question.

An argument was addressed to this Court on behalf of the plaintiff-respondent that on a true construction of the will of 1904 the plaintiff is entitled to succeed, apart from the question of the agreement under which he was adopted. It is contended that the will of 1904 incorporates the will of 1901, and under that will the plaintiff would be entitled to succeed as adopted son, and arguments were advanced by both sides as regards the legal effect of the revival and republication of wills. In my opinion it is not necessary to consider this question in detail. The learned Subordinate Judge in one part of his judgment says that in 1904 the Rani got a will in her favour by which Ram Raja was disinherited but in a later part, in dealing with issue 23, the learned Subordinate Judge has held that there is nothing in the last will, meaning the will of 1904, disinheriting Ram Raja, and as the first will, that is to say, the will of 1901 was re-established he was of opinion that on a construction of the two wills Ram Raja was entitled to claim the estate and recover possession from the Rani on the basis of para. 2 of the first will. The learned Subordinate Judge seems to be under the impression that there were two wills, viz. one of 1901 and the other of 1904, and he talks of the first will being re-established, and he finds that the two wills contain nothing which would amount to a disinheritance of Ram Raja. As a matter of fact, a man can only leave one last will. Such last will may be contained in more than one document; but there cannot be two last wills. By the will of 1903 the first will of 1901 was specifically revoked. Therefore in 1903 Ram Raja could not claim to inherit the property under the will of 1901. In fact it is clear from the will of 1903 that it was executed for the purpose of revoking the will of 1901 and of giving a title to Ram. Raja under the will of 1903.

Let us now sea what is the effect of the will of 1904. This will (Ex. 6) begins by referring to the two wills of 1901 and 1903 and sets out as follows:

I do not not now expect that Ram Raja after my death will preserve [really will uphold (quaim rakhem) literally will maintain the riasat with name and fame according to my views. Therefore I retain (really "I uphold" (gaim rakhta hun) the will executed in favour of Rani Chhatra Kumari

According to the contents of the same (meaning the will of 1901)

Rani Chhatra Kumari Devi will be the malik after me and if I get no son she will adopt one.

Again at the end he cancels the will of 1903 and provides that the will of 1901

shall remain uphold and reinstated (qaim too bahal rahega.)

It may be remarked that the translations in the paper-book exhibit traces of the great haste with which the paper-book was prepared and require revision. Now, this can have but one meaning. Ram Raja who was made the proprietor after the life-estate of the Raja under the will of 1903 is now considered inadequate to uphold the prestige of the estate and therefore Rani Chhatra Kumari is made the malik after the death of the Raja. The effect of this provision in the will of 1904 clearly is to substitute Rani Chhatra Kumari in place of Ram Raja as the person who will be the proprietor of the estate after the death of the Raja. No doubt the, Rani was to be the proprietor "according to the contents (a better translation in ''terms'') "of the first will, viz. with the limited right of an owner for life; but there can be no doubt that the intention of the testator was to disinherit Ram Raja. This intention is clear when we bear in mind the fact that it is the common case of both sides that the Rani had unbounded influence over the Raja, that the will of 1904 was executed in Calcutta under circumstances which can only lead to the inference that the object was to keep it concealed from Kanchhi Maya and all of her party, and that the execution of this will was part of a scheme to disown the adoption of Ram Raja and not to allow the estate to pass to him after the death of the Raja. It was a part of the same scheme as led to the execution of the deed of gift of the entire estate to the Rani to the application for registration of her name on the basis thereof, to the execution of the mukarrari of the 31 villages in her favour, to the subsequent withdrawal of the application for registration of the Rani''s name, and to the interview with the Collector at Motihari and the entry in the Raja''s dairy and the letter of the Raja to the Rani giving an account of his interview with the Collector. There can be no possible doubt that the object of executing the will of 1904 was to disinherit Ram Raja and it can by no means be construed as giving a title to Ram Raja. It is not necessary to consider the various cases cited by the parties as a guide to the construction of the document. The will of 1901 was made a part of the will of 1904 and was incorporated into it, and it is a case of incorporation u/s 31, Succession Act (10 of 1865), which has been made applicable to wills of Hindus by Section 2, Hindu Wills Act (21 of 1870), and not a case of revival or republication as has been contended before us. Even if it be considered to be a case of revival we have to read the two documents of 1901 and 1904 as one will, and on a true construction thereof I am clearly of opinion that the intention of the testator was that the estate should go to the Rani after his death and not to Ram Raja. All the cases and the of construction of documents are mere guides to enable the Court to determine the true intention of the testator and there can be no doubt that the intention of the testator in executing the will of 1904 was to disinherit Ram Raja. It is not therefore necessary to refer to those cases, as in my opinion Ram Raja cannot succeed on the basis of the will of 1904. The point however is not of much importance inasmuch as he has been held to have acquired a legal title by the agreement and the adoption which have been found in his favour.

The next point is the title of the Rani under the mukarrari patta of 12th June 1905 Ex. SS. By this document the Raja gave her a mukarrari for life of 31 villages. The learned Subordinate Judge has held that this mukarrari lease is in operative as against Ram Raja. As a legal title was acquired by Ram Raja to the entire estate by the fact of his adoption and the agreement, it is clear that this mukarrari lease is inoperative and cannot be enforced against Ram Raja after the death of the Raja. The mukarrari was valid during the lifetime of the Raja, but after his death it has no effect as against Ram Raja. If the title of Ram Raja had been established under the will of 1901 and not under the agreement then this mukarrari lease would have been valid as against Ram Raja; but having regard to the findings arrived at by me it is clear that, the Rani cannot retain possession of the 31 villages under this mukarrari lease.

The next point has reference to the Rani''s claim in respect of two villages Dainmarwa and Bargaon. This has been dealt with by the Subordinate Judge under issue 18. The Rani claims the right of a mortgagee in possession under two zarpeshgi deeds, one dated 18th July 1870 (Ex. RR) and the other dated 11th March 1893, (Ex. RR-1) executed by Raja Prahlad Sen and Rani Raj Kumari Devi respectively in favour of Lalman Rai and another in consideration of Rs. 1,401 and Rs. 34,000 respectively (apparently the zarpeshgi mentioned in the sale proclamation already referred to). The Rani claims to have paid these two sums to Lalman Rai and to be in possession as zarpeshgidar. The plaintiff''s case is that these two zarpeshgis were paid off by the Raja himself. The learned Subordinate Judge has held that the money paid by her has not been proved to be her own personal money and he has held that these two mauzas are held by the Rani as part of the Ramnagar estate. I am unable to agree with this finding of the Subordinate Judge. The plaintiff''s own witness Brahmadeo Lal stated that the Rani had purchased the zarpeshgi right of Lalman Rai. No doubt he stated that she paid the two sums of Rs. 34,000 and Rs. 4,000 from the money of the Raja, but on the question being repeated he said that the Raja gave her the money. Then he stated that the real purchaser was Raja Mohan Bikram. In his cross-examination be states that the sum of Rs. 34,000 was deposited in Court to the credit of Lalman Rai and the Rani was the depositor and the sum of Rs. 4,000 was also deposited in Court by the Rani in the lifetime of the Raja and that the Rani has bean collecting the rents of those two mauzas. The khewats of the finally published Record-of-Rights in respect of these two villages (Exs. O and O-29) stand in the name of Rani Chhatra Kumari as the zarpeshgidar and they carry a legal presumption of correctness. No evidence worth the name his been adduced on the part of the plaintiff to rabut this presumption. The learned Subordinate Judge his placed the entire onus upon the defendant to prove that the money she deposited in favour of Lalman Rai was her money. There he is clearly wrong. It was for the plaintiff to prove that the money was the money of the Ramnagar Raj, and there is no evidence on the point. We know that the Rani had separate property and separate funds of her own. She was in a position to advance the two sums of Rs. 31,000 and Rs. 4,000 from her own funds, and in the absence of any evidence on the part of the plaintiff it must be held that these two villages are in the possession of the Rani as zarpeshgidar and she would be entitled to retain possession thereof so long as the zarpeshgi is not paid off.

The learned Subordinate Judge has made a decree directing the Rani to render accounts of all income and expenses of the estate for the period from the Raja''s death up to the date on which the suit was instituted. An objection is taken that the account can be taken only for a period of three years before the institution of the suit and not from the date of the death of the Raja. This account has been ordered to be taken in order to determine whether the money detailed in Schedule E to the plaint is the saving of the estate or the personal money of the Rani or of the other persons in whose name the deposits stand in the banks or the Government securities and war bonds stand. In this also the learned Subordinate Judge seems to have fallen into an error. I have found that the possession of the Rani has bean adverse to Ram Raja from the date of death of Raja Mohan Bikram. If the Rani has bean in adverse possession and has appropriated the income of the estate as a person in adverse possession, the claim of the plaintiff in so far as the cash is concerned is barred by three years limitation. He can only claim the income and profits of the estate for a period of three years before the institution of the suit byway of mesne profits, and cannot ask the Rani to render account. It is contended by Mr. Pugh that there can be no limitation inasmuch as the Rani is in possession as executrix and an executrix is bound to render account for the full period during which she has been in possession as such. The Rani no doubt in para. 43 of her written statement, claims to remain in possession as executrix, but the real case made by her is that she is the malik under the will of 1904. She is thus a trespasser and the plaintiff treats her as such and claims possession as the rightful owner, and a claim against a trespasser for the rents and profits for a period beyond three years of the suit is barred by limitation. The direction, therefore as regards the taking of the accounts must be set aside.

This necessitates an inquiry as regards the plaintiffs'' claims to the funds standing in the name of the Rani and the other persons and detailed in Schedule E to the plaint. The learned Subordinate Judge seems to be inclined to hold that the funds belonged to the Rani, but has come to no distinct finding thereon. I am of opinion that the plaintiff cannot succeed in his claim in respect of those funds unless he satisfactorily establishes that they are funds belonging to the Ramnagar Raj and the onus is entirely upon him to do so. The learned Subordinate Judge must be directed to try the issues 17 and 21 in so far as the claim of the plaintiff in respect of moneys standing in name of defendant 1 and defendants 3 and 7 are concerned.

As regards the money standing in the name of defendant 2, Maiyan Dalip Rajeshwari Devi, the Subordinate Judge has come to the finding that no portion of the money shown in Schedule R is defendant 2''s own property, but that the Rani deposited money jointly in her own name and in the name of her sister, defendant 2, and purchased war bonds in her name. Maiyan Dalip Rajeshwari has preferred an appeal against this portion of the finding of the Subordinate Judge and her appeal is No. 35 of 1928. The learned Subordinate Judge has found against her on three grounds, viz.: (1) that she has not examined herself, (2) that she has not produced her account-books, and (3) that she is a person of no means. He has thus thrown the entire onus upon defendant 2 to prove that the money standing in her name was not her money; in, other words, that the apparent state of things is not the real state of things. In this he is clearly wrong. The money must be presumed to belong to the person in whose name, it stands, and the person claiming it must prove that it belongs to him. The evidence given by the plaintiff consists of the deposition of certain witnesses who says that defendant 2 had no means and could not deposit such large amounts. Amar Bahadur Mull states that Maiyan Dalip Rajeshwari had no money of her own and that her husband was a poor Thakur by caste. Her case is that she has property of her own and that she got some property from her father Raja Puran Chand. In his cross-examination Amar Bahadur Mull confesses his ignorance as to whether she got any property from her father and states that he made no inquiry into the matter. Raja Gupta Bahadur, cousin of defendants 1 and 2, who now holds as heir male the Garoon Kote Raj of Raja Puran Chand Khan, father of defendants 1 and 2, suggested in examination-in-chief that defendant 2 had no means of her own, but in cross-examination was obliged to say: "I know that he," meaning Raja Puran Chand, "gave away some of his properties in Garoon Kote by writing to them" meaning his two daughters Dalip Rajeshwari defendant 2 and Jog Rajeshwari the mother of defendant 7. In further cross-examination he stated that the two daughters received the income of those properties which amounted to Rs. 3,000 in cash for each with a certain quantity of grain, and he admitted that they had been getting the income till now. Puran Mahadwariya states that Maiyan Dalip Rajeshwari had no income of her own and no means to deposit money in any bank.

Suba Garurdhaj Khan makes a similar statement, but in his cross-examination he states that he does not know if Puran Chand Khan gave any properties to each of his daughters and he does not know what property or money Maiyan Dalip Rajeshwari has Gopal Narain states that he knows what the different sums are in deposit in different banks in the name of Dalip Rajeshwari Devi and others and that all such sums are funds belonging to the estate. This is the whole of the evidence on the side of the plaintiff. On the other hand, Rani Chattra Kumari in her deposition states that she had no concern with the money in the banks and the war bonds standing in the name of Dalip Rajeshwari; and of the money standing in her name and in the name of Dalip Rejeshwari jointly, half belongs to her and half to Dalip Rajeshwari. We find that on 23rd April 1907 defendant 2 advanced a loan of Rs. 35,000 in Calcutta to Raja Mohan Bikram under a hand-note (Ex. AAA). It is suggested that this money really belonged to the Rani and she took the hand note in the name of her sister. It is a mare suggestion, and there is absolutely no evidence in support of it. I must therefore hold that the plaintiff has failed to prove that the deposits in the banks and the war bonds standing in the name of defendant 2 are properties belonging to the Ramnagar Raj to which ha is entitled, and this portion of his claim must be dismissed and Appeal No. 35 of 1928 decreed with costs in this Court as well as in the Court below.

There is one small point in the Rani''s appeal as regards costs. The learned Subordinate Judge has decreed the suit against her with costs and has directed pleader''s fees to be calculated at 10 percent, on the value of the suit with the result that the amount of costs awarded to the plaintiff has come up to Rs. 2,02,117-11-9 out of which pleader''s costs alone amount to Rs. 1,77,779-5-0. The matter of costs is no doubt entirely in the discretion of the Court. The case is also an important one and it was heard in the trial Court for four and a half months, but taking all these facts into consideration I am of opinion that the costs awarded are excessive and that pleader''s fee in the Court below should be calculated at 5 instead of 10 per cent as directed by the Subordinate Judge.

Appeal No. 43 of 1928 arises out of the rent suit brought by the Rani for the realization of the rent reserved under the sadhaua-pataua dead for Rs. 2,00,000 executed in favour of Kanchhi Maya. As it has been found that Ram Raja who is in possession of the sadhaua properties as successor-in-interest of Kanchhi Maya is also the owner of the proprietary interest as the person entitled to the Ramnagar Raj, it is clear that he is not liable to pay any rent to the Rani.

The result is that in Appeal No. 34 of 1928 the decree of the learned Subordinate Judge will be modified to the extent indicated above. In other words, the declaration made by him, that plaintiff Ram Raja is entitled to the entire estate of Ramnagar, described in Schedule A of the plaint, but excluding the seven villages Nos. 32 to 98 as described in Schedule A of the Rani''s written statement and also excluding the two mukarrai villages Dhadhidhanewan and Pipra that have been found to belong to defendant 2 Dalip Rajeshwari, and the direction that the plaintiff do recover possession of the estate thus decreed from defendant 1 is affirmed. It will be declared that the Rani, defendant 1, is entitled to retain possession of the two villages Dainmarwa and Bargaon as zarpeshgidar until repayment of the zarpeshgi of Rs. 34,000 and Rs. 4,101.

The declaration made by the Subordinate Judge to the effect that the plaintiff is entitled to recover from the Rani all savings and accumulations made by her out of the income of the estate since the time of the Raja''s death, which took place on 18th April 1912, up to the date of the institution of this suit, will be set aside and a decree will be made for mesne profits for three years before suit, the amount of which will be determined by the Subordinate Judge. The direction relating to the passing of a preliminary decree against defendant 1, directing her to render accounts of all incomes and expenses of the estate for the period from the Raja''s death up to the date on which the suit was instituted, is also set aside. The determination of the question involved in issues 17 and 21 relating to the question whether the funds set out in Schedule E attached to the plaint form part of the Ramnagar Estate, is remitted to the Subordinate Judge with reference to such funds as stand in the names of persons other than defendant 2, Maiyan Dalip Rajeshwari Devi, and as regards the funds standing in the name of defendant 2 it will be declared that the plaintiff has failed to prove that he is entitled to the same, and his suit to that extent will be dismissed. The direction not to withdraw or deal with the money in deposit mentioned in Schedule E will be withdrawn. The declaration that defendant 1 has no right to adopt as son any other boy to her late husband and the perpetual injunction issued restraining her from doing so will stand. The direction regarding mesne profits from the date of a suit will stand with the modification that such mesne profits will be calculated from the date of suit up to 25th August 1927, which is the date admitted by both parties on which Ram Raja actually took possession of the Raj. The direction for recovery of all costs of the suit from defendant 1 alone will also stand, but the amount of costs awarded in the Court below will be reduced by allowing pleader''s fee at 5 per cent instead of 10 per cent. As regards costs of this appeal, the appellant will pay to the respondent Ram Raja half his costs and will bear her own costs.

Appeal No. 35 of 1928 is decreed with costs against Ram Raja in this Court as well as in the Court below, pleader''s fee in the Court below being calculated at 5 per cent. Appeal No. 43 of 1928 is dismissed with costs.

Macpherson, J.

I agree.