Jagarnath Prasad Singh and Another vs Surajdeo Narain Singh and Others

James, J.—The late Kodai Singh of Bishunpur Saraiya in Muzaiiarpur had three sons, Lachnii Narain, Deodip Narain and Kuldip Narain. Kuldip survived both of his brothers each of whom left a family of sons, but Kuldip, when he died towards the end of 1921, left two widows but no children. The names of the widows were substituted for the name of Kuldip in the Collector''s registers. the family possessed small shares in two estates in Cheutaha of four annas in the estate bearing Tauzl No. 6901-1, in which Kuldip''s share was recorded as of one anna six gandas and of two annas twelve gandas in the estate bearing Tauzi No. 6809-1 in which Kuldip"s share was recorded as eight gandas. The Deoria factory had a snare of eight annas in the first estate and of twelve annas odd in the other Kuldip in the beginning of 1919 had entered into negotiations with the manager of the factory for the purchase of these shares, but the manager could not enter into a definite contract without authority from the proprietors in England and without a power of attorney. It was contemplated that the properly should be purchased for Rs. 12,600 on which account early in 1919 Kuldip deposited Rs. 13,000 with the manager of the factory with the arrangement that until the conveyance should be executed the deposit should be treated as a loan to the factory bearing interest at the rate of six per cent, per annum. Kuldip died before the conveyance could be made but on February 17, 1922, the manager Mr. R.H. Waller, obtained a power of attorney with authority to complete the sale, which was completed on March 21, 1922, when the shares in the two estates were conveyed by Mr. Waller to the widows of Kuldip, Musammat Sita Kuer and, Musammat Bhagwati Kuer, whose names were in due course substituted in the Collector''s land register for those of. the proprietors of the factory. Rita Kuer died in the autumn of 1928- In 1931, the surviving widow, Musammat Bhagwati Kuer, executed a deed of gift, wherebv she gave to her nephew, Jagarnath Prasad, grandson of Lacbmi Narain the elder brother of Kuldip the shares of proprietary interest of which she and Sita Kuer bad completed the purchase in 1922. In the deed of gift Bhagwati Kuer described Tagarnath Prasad as the adopted son of Kuldip (karta. vutm). Thereupon the three sons of Deodip Narain. Kuldip''s other brother, instituted a suit out of which this appeal arises. They alTeged that Kuldip had been joint with his brother Deodip Narain, and that he died in a state of jointness with Deodip Narain''s sons, the plaintiffs. They alleged also that Kuldip had adopted as a karta putra Rajindra Prasad Singh, one of the three plaintiffs, and that in 1920 he had made a will whereby he bequeathed his property to Rajindra Prasad, providing that if Rajindra should become a Sadhu his widow should enjoy a life interest with remainder to a son of the plaintiff, Surajdeo Narain.

The limitations of the will are not very clearly expressed but the matter does not appear to be of any great importance. The plaintiffs prayed for a declaration that the deed of gift should be declared to be of no effect against them, and for a declaration that Jagarnalh Prasad was not the adopted son of Kuldip. The defendants denied that Kuldip bad been joint with the members of Surajdeo Narain''s family or that be had ever adopted Rajindra; and they alleged that the shares purchased in 1922 had been acquired with money which Bhagwati Kuer had obtained from berown family, so that they were her stridhan property. They alleged that Jagarnath Prasad had been adopted by Kuldip. On these pleadings the Subordinate Judge framed the following issues: (1) Whether the suit as framed is maintainable? (2) Whether plaintiffs have got any right to sue or cause of action ? (3) Whether the suit is barred u/s 42, Specific Relief Act? (4) Whether the genealogical table given in the plaint is correct? (5) Whether Kuldip Narain died while living joint with plaintiffs? (6) Whether Jagarnath Prasad was adopted by Kuldip Narain as his karta putra? Whether he adopted Rajindra Prasad as his karta putra as alleged by the plaintiffs? (7) Whether the will propounded by the plaintiffs is genuine and valid? (8) Whether the disputed land was acquired out, of the joint family funds of the plaintiffs or it was stridhan of Musammat Bhagwati Kuer? (9) Whether the Atainama, dated October 9, 1931, is valid and genuine? (10) Whether the Atainama dated October 9, 1931, is binding on the plaintiffs after the death of defendant No. 1? (11) To what other relief, if any, are the plaintiffs entitled?

The Subordinate Judge found that the account of the genealogy given by the plaintiffs was correct, that Kuldip died in a state of separation, and that he had not adopted Jagarnath or Rajindra. He found that the will propounded by the plaintiffs was not genuine; that the disputed land was acquired out of Kuldip''s own funds and not from the money of Musammat Bhagwati Kuer. He found that the deed of gift was valid and genuine. On these findings of fact, applying the ordinary Mitakshara law, he gave to the plaintiffs the declarations that the deed of gift would not be binding on the plaintiffs after the death , of Musammat Bhagwati Kuer, and that'''' Jagarnath Prasad was not the adopted son of Kuldip Narain. The defendants Bhagwati Kuer and Jagarnath Prasad and his father appealed from that decision; but Bhagwati Kuer died during the pendency of the appeal so that Jagarnath Prasad and his father remain as appellants. The appellants attack the Subordinate Judge''s findings of fact to the effect that the elder brother Lachmi Narain bad not the same mother as his two brothers Deodip and Kuldip; that Jagarnath Prasad had not been adopted as karta putra and that the purchase was not made with money which was the stridhan of Musammat Bhagwati Kuer. The respondents by their cross objection supporting the decree on grounds decided against them in the Court below) attack all those findings of fact of the learned Subordinate Judge which are in favour of the defendants. It will be convenient to treat these issues of fact seriatim in the order in which they have been stated by the learned Subordinate Judge. (After discussing evidence his Lordship proceeded.) I would thus accept all the findings of fact of the learned Subordinate Judge which are to the following effect. Kuldip was separate from the family of his brothers; he died without issue leaving two widows, who would enjoy a widow''s estate in his property according to the school of Hindu Law by which they were governed; so that the property or at least the immovable property would after the death of the last surviving widow go to the reversionary heirs of Kuldip. Kuldip adop''ed no son; he made no will. He left Rs. 13,100 earmarked for the purchase of shares in estates in which he already held an interest; and his widows after his death applied his money to the completion of that transaction which he had contemplated. On these points we affirm the findings of fact of the learned Subordinate Judge and we now come to the discussion of the questions of law which arise on these findings.

The parties are high-caste Hindus living in Mithila and from an answer given by the plaintiff Surajdeo to a question put to him in cross-examination, it would appear that they are long established natives of Mithila and not immigrants. The learned Subordinate Judge refused to enter into the question of what would have been the position on the facts under Mithila Lawi because the parties had not pleaded that they were governed by the Mithila Law. Mr. S.N. Kai, on behalf of the appellants, argues that Mithila Law is the lex loci of Mithila and that high-caste Hindus or any Hindu natives of Mithila should be prima facie regarded as governed by Mithila Law unless they plead that they are not. Mr. A.B. Mukharji suggests that the Mithila Law governs Mithila Branmins and not other castes in Mithila and he suggests that Babhans are by tradition immigrants from the north-west, Mr. Mukharji was not able to produce any authority in support of his contention that Babhans, the most numerous ciste, in Mithila, are not governed by MilhilvLaw, and since a sense all high case Hindus in this part of India are necessarily by tradition immigrants from some other part of India or beyond, it would not be possible to hold that the members of the Babhan caste natives of T-irhoot are not governed by Mithila Law. As admittedly natives of Tirhoot, with not, even a tradition of immigration, the parties for the present suit must be regarded as" governed by Mithila Law as their lex loci: Ram, Das v. Chundra Dassia 20 C 409. Under Mithila Law the widows'' would take an absolute interest in the movables left by their husbands with cotrlplete right of disposal as if they were gifts by their husbands: Sureshwar Misser v. Maheshrani Misrain 48 C 100 : 57 Ind. Cas. 325 : AIR 1921 PC 10 : 47 IA 233 : (1920) MWN 472 : 39 MLJ 161 : 28 MLT 154 : 2 UPLR (PC) 128 : 12 LW 461 : 18 ALJ 1069 : 25 CWN 194 : 41 CLJ 433 Mr. S.N. Rai argues that since they enjoyed an absolute interest in the movables, the deposit of Rs. 13,000 which Kuldip had made, became their absolute property and if they utilized it for the purchase of shares in these estates, those shares became their stridhan which they enjoyed jointly with right of survivorship, so that in the end the acquired property became the stridhan of Bhagwati Kuer. Mr. A.B. Mukharji suggests that the English doctrines of conversion and election should be held to apply in a case like this, that when Kuldip left Rs. 13,000 earmarked for the purchase of particular real property, the money should be regarded as impressed with the character of real property, and that in any event it should be so regarded with the widows elected to carry out their husband''s intentions.

It is difficult to apply the English doctrine whereby the inheritance of rights under a contract for sale has been treated as inheritance of the property itself, because the provisions of Section 54, Transfer of Property Act, expressly. rule out the theory on which that doctrine rests. It is dangerous to act upon apparent analogies of position to import into Hindu, Law English equitable doctrines, which might apply if the parties were governed by English Law and if the facts were slightly different, but in the present case it appears to us that whether the parties are governed by Mithila Law or by the ordinary law of the Mitakshara School the decision of the learned Subordinate Judge was in the end correct. The case should be regarded as governed by the principles laid down by the Judicial Committee of the Privy Council in Isri Dutt v. Hansbutti Koerain (3). Kuldip before his death had contemplated making an accretion to his estate by the purchase of a larger share in the two estates in which he already held shares; and he had gone so far as to deposit the whole of the purchase money with the agent of the contemplated vendor. The widows when they succeeded to his estate may or may not have been entitled to decline to make this intended accretion perhaps if they were governed by the Mithila aw they might have taken that money, and have used it entirely for their own purpose but they did, acting jointly as widows of their late husband and apparently representing him. carry out his intentions, and they did make this accretion to their husband''s estate. Since the transaction was made in this way by the two widows in their express capacity of successors to their deceased husband. I think that the purchase must be regarded as an accretion to their husband''s estate. We need not enter into the question of whether if this transaction h d been carried out by a sole Mithila widow, she might subsequently have resiled fiom it and treated the property as her own, though it appears probable that she could not; Isri Dutt''s case 10 C 324 : 10 IA 150 : 4 Sar. 459 was a case from Mithila. But here the two widows jointly made this accretion and Bhagwati Kuer could certainly not, after the death of her co-widow, change the character of the property which had been created by the two widows jointly, that is to say, Bhagwati Kuer could not convert into her own personal property that which by mutual consent she and Sita Kuer had made an accretion to the estate of her husband.

For these reasons I consider that the decree of the learned Subordinate Judge should be confirmed and 1 would dismiss this appeal with costs.

Courtney-Terrell, C.J.

I agree.