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1926 (11) TMI 2

, both situate in the district of Bahraich, and mahal Usraina situate in the district of Gonda, as well as of certain houses situate in the districts of Bahraich, Gonda, Lucknow and Allahabad together with furniture and other moveable property existing in those houses, as well as for declaration in respect of certain sums of money in the estate treasury at Bhinga, district Bahraich, and in the Imperial Bank, Banares, and also certain Government securities held in safe custody by the aforesaid bank. The plaintiff is the widow of one Kunwar Mahendra Bikram Sinha Deo, who predeceased his father Raja Udai Pratap Sinha Deo Somyaji, the late Raja of Bhinga. Defendant No. 1, Bhaiya Rajendra Bahadur Sinha Deo, is the younger brother of the late Raja. Defendant No. 2, Bhaiya Birendra Kant Sinha, is his eldest son. His three other sons were originally impleaded in the case as Defendants Nos. 3, 4 and 5, but were subsequently discharged and their names struck off the record on the ground that they disclaimed all interest in the property in suit. We are thus concerned with only two defendants, Defendants Nos. 1 and 2. 2. There are six lists attached to the plaint describing the property in sui .....

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ed a will in respect of the whole of his property, moveable, and immovable and got it registered on the 22nd of June 1907. Under that will the Raja gave the property to the plaintiff's husband who was alive at the time when the will was executed but died subsequently. He also provided in that will that in case his son (the plaintiff's husband) died during his lifetime the property was to go to his widow Rani (subsequently Maharani) Murar Kumari Davi for her life and after her death to the plaintiff for her life and after her death to the person who may be found to be his heir at law. Regarding moneys , jewels and gold and silver plate he made a bequest thereof in favour of his wife absolutely. Kunwar Mahendra Bikram Sinha Deo, the husband of the plaintiff, unfortunately died during the lifetime of the Raja on the 27th of July 1907, soon after the execution of the will, The Raja died in July 1913, and his widow Rani (afterwards Maharani) Murar Kumari Davi died on the 30th of April 1926. After the death of the Raja the whole of the moveable and immovable property left by him, it is alleged, came into the possession of his widow Maharani Murar Kumari Davi as provided in the wi .....

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ill of the property so settled invalid and unenforceable in so far as it was in contravention of the provisions of Section 18 of Act 2 of 1900. As to the property entered in list B the defence is that the defendant is entitled to the same according to a family custom of single heir succession which prevails in the family of the late Raja and under which the whole of the property of the Raja, whether taluqdari or non-taluqdari, is to go to one and the same individual, and if the bequest made by the Raja in favour of the plaintiff failed in respect of a portion of the property, it would also fail in respect of the rest of the property. Regarding list C it is contended that the houses situate in the district of Bahraich and in the city of Lucknow constitute accretions or appurtenances to the taluqa and must therefore be deemed subject to the declaration made by the late Raja under the provisions of the Oudh Settled Estates Act 2 of 1900. 6. Regarding the moveable property entered in list D it is alleged that it also constitutes an accretion or appurtenance to the taluqa and the Defendant No. 1 toeing entitled to the taluqa is also entitled to the sum of Es, 54,680-3-9. It is said that .....

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ons of the Oudh Settled Estates Act 2 of 1900? Which of the parties is entitled to them? 5. (a) Did the property entered in list D attached to the plaint belong to the late Raja Udai Pratap Sinha or was it the stridhan of the late Maharani Murar Kumari Devi? (b) Did it in either view constitute an accretion or an appurtenance to the taluqa? Which of the parties is entitled to it? 6. (a) Is the sum of ₹ 54,680-3-9 (or any part of it), out of the amount entered in list E attached to the plaint accretion to the taluqa or the stridhan of the late Maharani Murar Kumari Davi? Which of the parties is entitled thereto? (b) Does the sum of ₹ 21,320-3 9 or any portion thereof represent the collections of the estate made by the plaintiff after the death of the Maharani or by the defendant after her death? How much of the said collections was in respect of mahal Bhinga and how much in respect of mahal Usraina? Which of the parties is entitled to the said collection? 7. Is the plaintiff or Defendant No. 1 heir to the properties which constitute the stridhan of Maharani Murar Kumari Devi? 8. Does the property entered in list F attached to the plaint, consisting of the Government secu .....

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ection 3 of the said Act for permission to declare that the immovable property specified in the statement attached to the notification should in future be held subject to the provisions of the said Act, and if any person had any claim enforceable against the Raja in respect of his immovable property he was required to notify the same in writing to the Collector of the district of Bahraich within six months of the date of the publication of this notice and to show cause in writing within such period why the permission sought for should not be granted (vide Ex. A-1). The statement attached to the notification contains 90 villages constituting mahal Bhinga entered in list A. They are villages Nos. 1 to 89 and 21 in the said list. 11. Another notification, dated the 24th April 1908, was published in the Government Gazette of the United Provinces, bearing date the 25th April 1908, on page 360, Part I. This notification was issued under Section 6 of the said Act and stated that the required permission had been granted under the said section to the late Raja to declare that the portion of his estate for which he had sought permission could be declared by him to be held in future subject t .....

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intestate the settled estate shall descend according to the provisions of that section. (2) Notwithstanding the provisions of any contract or disposition to the contrary every person for the time being entitled to a settled estate who constitutes a fresh stock of descent according to Sub-section (1) shall be competent to bequeath the same subject to the provisions of the Oudh Estates Act 1869: Provided that such person shall not be competent to bequeath the same except as an impartible estate to be held by one person only and according to the provisions of this Act or to subject the same or the profits thereof to any demand, charge or encumbrance whatsoever or to bequeath the same to a stranger so as to exclude any of the classes specified in Section 22 of the Oudh Estates Act 1869. 12. I must also now state that after the Raja had applied for permission under Section 3 and after the permission had been granted to him by the Government on the 26th of February 1907, he executed a will on the 17th June 1907, the effect of which is a matter in dispute in this case. This will was executed by the Raja at Benares and was duly registered on the 22nd of June 1907. It has been filed in the .....

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on 18 Act 2 of 1900. It was urged in defence that the legal effect of the proceedings described above was to render any disposition made prior or subsequent to the date of the irrevocable declaration invalid. It was pointed out that the plaintiff being the daughter-in-law of the late Raja was no heir to him under the law of the Mitakshara to which the said Raja was subject and consequently was a "stranger" within the meaning of Section 18 quoted above and the bequest of the life estate in mahal Bhinga to the plaintiff was, therefore, invalid and unenforceable, 14. The reply given to this argument on behalf of the plaintiff was to the effect that the will having been made at a time when the Oudh Settled Estates Act had been applied to mahal Bhinga, it was a perfectly valid will and nothing that was done by the Raja subsequently could affect the validity of the said will and consequently Section 18 of the said Act did not apply to the case at all. It was also urged that even if Section 18 applied, the will did not in any way infringe any of the provisions of the said section inasmuch as the plaintiff was an heir to the late Raja under the law of the Mitakshara and could not .....

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oever he liked. He became after the execution of the declaration dated the 21st of May 1908, possessed only of a life estate in the said property and could not transfer the same or any part thereof or the profits thereof for any greater or larger interest than during his life. 18. The intention of the legislature in framing the Oudh Settled Estates Act was, as would appear from its preamble, to make provisions for the preservation of estates in Oudh, This object was gained by providing for a succession of life estates under Section 15 of the said Act. The absolute power possessed by a taluqdar under Act 1 of 1869 was taken away in case he chose to bring his estate within the provisions of the Oudh Settled Estates Act by declaring it to be a "settled estate," and no transfer made by him thereafter was to be operative beyond his own lifetime. It is expressly declared in the said section that a settled estate or any part thereof, or the profits thereof, shall not be held by any Court to be or have vested in such person (i.e., a person entitled to a settled estate) for any larger or greater interest or time than for his life. No elaborate argument is, therefore, necessary to .....

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document in accordance with the provisions of Section 59 of the Indian Succession Act 10 of 1865, (vide Section 19 of Act 1 of 1869). I consider this argument to be of no substance. Suppose a taluqdar possessing absolute power of transfer in respect of his talqua executes a will in respect thereof in favour of a particular person and subsequently transfers either by way of sale or gift the whole or a portion of it, the transferee cannot be deprived of the property transferred to him by the said taluqdar on his death on the ground that the will previously executed by him must be held to be operative and that the subsequent transfer could not be considered to operate as a revocation of the will previously executed because it could not be considered as a will expressly revoking the previous will in accordance with the provisions of Section 59 of Act 10 of 1865. Such a proposition is obviously untenable on the very face of it; it has only to be stated and to be rejected. 21. The learned advocate for the plaintiff cited two cases before me to substantiate the proposition that even an Act of Parliament passed subsequently to the execution of a will could not affect the validity of a will .....

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it conformed to the provisions of Section 18 of Act 2 of 1900. Second point.-According to the notion of Hindu jurists, women are considered to be weak and powerless and thus unable to protect themselves. They are described in the Sanskrit texts as nirindriya (sic) which has been inappropriately translated "without senses." The translation which brings out the original idea is that given by Professor Max Muller, it being that woman are considered to be destitute of strength (vide Sacred Books of the East, Vol. 14, p. 231). 24. This rule of rigid exclusion of the females from succession underwent modification with the progress of the times and in order to let certain females to succeed they were afterwards, expressly named in the texts. 25. It is, therefore, a recognized principle of the Benares school that no female can inherit to a male unless she is expressly named in the Mitakshara. The females expressly named in the Mitakshara are the widow, the daughter, the mother, the father's mother (grandmother), and father's father's mother (great-grandmother). No other female is named in the text and she is not, therefore, recognized as an heir. The same principle i .....

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he year 1882, the case of a daughter-in-law of a person residing in the province of Bihar and governed by the law of the Mitakshara came up for decision and her claim was rejected on the ground that she, not having been named in the Mitakshara in the line of heirs of her father-in-law, was not entitled to succeed. The decision is to be found in Ananda Bibee v. Nownit Lal [1882] 9 Cal. 315, decided by Mitter, C.J., and Maclean, J. The judgment of Mitter, J., deals with this question exhaustively and I do not think anything more can be added to that judgment. In the same year the case of a sister also came up for decision before the same Court and Mitter, C.J., and Norris, J., in Jullessur Kooer v. Uggur Roy [1882] 9 Cal.725 rejected her claim also on the same ground, viz., that she was not entitled to succeed because she was not expressly included in the line of heirs. Seven years later in 1889 there came up for decision before the same Court the case of a brother's widow. The case is reported in Jogdamba Koer v. Secretary of State [1889]16 Cal.367 It was argued at great length before Petheram, C.J., and Banerjee, J., and the learned Judges in an exhaustive judgment followed the .....

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pindas only such of them as had been expressly named could succeed and other females in the line of remote sapindas who were not named should be held as excluded. The learned Judges of the Bombay High Court accepted the argument of the appellant and held that if the females of the near line of gotraja sapindas, that is of father, grandfather and great-grandfather, could succeed, there was no reason why a widow of every gotraja sapinda should not similarly succeed; and reliance was placed for this interpretation on a work of Hindu Law called Subodhni by Bisheshar Bhat. 29. In Baee Jetha v. Huribhai Bhagwandass 1 U.P.J. Bom. 318, the question of succession of the daughter-in-law of a separated Hindu in preference to a distant cousin was considered and the learned Judges of the Bombay High Court, of whom one was the same Judge who was responsible for the decision in Lakshmi bai v. Jairam Hari 6 Bom. H.C.R.152, followed the previous case and held that the daughter-in-law was entitled to succeed in preference to a distant cousin. No argument is to be found in the judgment at all. It is a short judgment and merely states the decision and quotes for its reason the decision reported in Lak .....

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gh Court that the law prevailing in. Bengal and Southern India is opposed to the right claimed by the widow; but they arrived at the conclusion that a different interpretation of the law has been accepted in Western India, and the elaborate judgments of the Chief Justice (in which Mr. Justice Sargent concurred) and of Mr. Justice West are directed to elucidate the grounds on which the distinction rests. The books whose authority is principally followed in Western India are Manu the Mitakshara and the Mayukha. These are stated by the Chief Justice, and no doubt correctly to be 'the reigning authorities' in the Presidency of Bombay, The learned Judges have sought to support their decision in favour of the widow from passages found in these works. It is acknowledged that the rule of succession to which they have given effect is but dimly enunciated in these passages, but the Judges have considered that the interpretation which has been given to them in Western India, evidenced by decisions and the opinions of Shastris has fixed and determined the law for that part of India.... According to the received doctrines of the Bengal and Madras schools, women are held to be incompeten .....

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. The same view has been expounded in the well-known work on Hindu Law by J.C., Ghosh (3rd edition, Vol. 1, pp. 154 to 156) and by West and Buhler on Hindu Law (4th edition, pp. 117 to 122). This question has also been discussed by Sarvadhikari in his Tagore Law Lectures (Lecture XIII on "Order of Succession under the Mitakshara law," pp. 531 to 533, 2nd edition, and also in Mayne's Hindu Law (9th edition) Chap. XVII, dealing with the principle of succession in case of females, pp. 753 to 781). Indeed, Mr. Mayne has clearly pointed out on p. 765 that in the Bengal and Benares schools the merits of the widow to succeed were purely personal as between herself and her husband, and that as a widow her claim for anything beyond maintenance was only against her husband. In short, she could only succeed to her husband's property or rights, namely, to the property which was actually vested in her husband, either in title or in possession, at the time of his death. She must take it at once at his death or not at all. No fresh rights can accrue to her as widow in consequence of the subsequent death of some one to whom he would have been heir if he had lived. Hence no claim .....

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ect to quite strictly, It appears to me to be clear from the wording of the proviso to Clause (2) Section 18 that the extent to which the power of bequest given by law to the late Raja as holder of a "settled estate" could be exercised t was that he could make a bequest of the estate only to one person and to be held I by him as an impartible estate and that it must be made in favour of a person who is not a stranger. 38. So far as the bequest stood in favour of the late Maharani Murar Kumari Devi it was within the powers conferred upon the late Raja under this section, because she was a possible heir under the provisions of Section 22 of Act 1 of 1869. After such a bequest had been made by the Raja his power of making a further bequest came to an end. He could exclude the heir-at-law by giving a life estate to a person who though not an heir-at-law was still an heir under any clause of Section 22 of Act 1 of 1869, but beyond this he had no power to go. If such a position were to be allowed it would be quite possible for a person holding a "settled estate" to deprive the person who would be entitled to succeed after his death under the provisions of Section 22 o .....

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ing of village Lakhna, Item No. 90 of list A, and mahal Usraina consisting of 27 villages entered in list B, inasmuch as they were never constituted a settled estate by the late Raja. (His Lordship than dealt with Issue No. 2 and found that the will of the late Raja Udai Pratap Sinha Deo was valid in respect of the property entered as No. 90 in list A and the entire property entered in list B attached to the plaint, and as Defendant No. 2 abandoned the plea of custom, his Lordship decided Issue No. 3 in the negative and proceeded with Issue No. 4.) This issue deals with the houses situate in the district of Bahraich and in the city of Lucknow entered as Items Nos. 2 to 16 and 18 and 20 to 32 in list C attached to the plaint. So far as the Bhinga palace, namely, Item No. 1 of list C, is concerned, the parties admit that it should go along with taluqa Bhinga, the whole of which except one village Lakhna constituting mahal Lakhna was declared by the late Raja to be a "settled estate" to be held in future subject to the provisions of the Oudh Settled Elates Act (2 of 1900). The palace is also situate in village Bhinga (khas) which is one of the villages forming part of the &q .....

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on that land would pass by the deed in the absence of words showing an intention to retain, them. 42. The same view had also been previously taken by their Lordships of the Privy Council in a Bihar case which went to them on appeal from the Calcutta High Court and which is reported in Mt. Bhagabutti Devi v. Ch. Bholanath Thakoor [1875] 1 Cal. 104, I will refer to-this case later on in connexion with another issue in the case. In that case the plaintiffs were given a decree in respect of certain villages entered in the list attached to the plaint as Items Nos. 1 to 12. Item No. 20 consisted of a house situate in one of those villages in which the original proprietor, of whom the plaintiffs claimed to be the heirs, lived. The Courts in India had declared that the plaintiffs were entitled to those villages and the same view was upheld by their Lordships of the Privy Council. The house situate in one of those villages was also decreed to the plaintiffs and in giving that decree their Lordships observed (vide p. 262) that Item No. 20 comprised a. house in which Odan Thakur lived and must in their Lordships' opinion be recovered by the plaintiffs on the same principle on which they .....

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e case of Jokha Singh v. Mt. Dulari [1908] 11 O.C. 310. 44. The presumption, however, cannot be extended to the case of property held by a Hindu female not as a Hindu widow's estate but as a life estate under a will or deed inter vivos. If the property which has been obtained by a widow under a bequest from her husband is a property to which she would not be entitled as heir to her husband, the savings from the income of such property and every thing purchased out of such savings would belong absolutely to herself and would constitute her stridhan. Such property would on her death pass to her heirs and not to the heirs of the last male holder. A case of this nature arose in the district of Tirhut now included in the province of Bihar. The case was originally decided by the Subordinate Judge of Tirhut arid the appeal which went to the Calcutta High Court was decided by that Court so far back as the year 1871. The case is reported in Ch. Bholanath Thakoor v. Mt. Bhagabatti Devi 7 B.L.R. 93. In that case one Odan Thakoor, during his lifetime adopted one Girdhari Thakur, his nephew, and shortly before his death executed deed of settlement in favour of his wife and daughter by virtu .....

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They referred in their judgment to two cases, one decided by the Calcutta High Court reported in 9 Weekly Reporter 584, and the other decided by the Agra High Court reported in 1 Agra High Court Reports, 219, and observed that in cases where a widow was in the enjoyment of the property of her deceased husband she was not entitled to alienate the property which she had purchased out of the property given to her by her husband any more than she could alienate immovable property given to her by the husband himself. 46. The defendant, the granddaughter, took the matter further in appeal to their Lordships of the Privy Council whose judgment is reported in Mt. Bhagabatti Devi v. Ch. Bholanath [1875] 1 Cal. 104. Their Lordships reversed the judgment of the Calcutta High Court and dismissed the plaintiffs' claim in respect of the property that had been acquired by the widow out of the profits of the estate given to her by her husband. Their Lordships agreed with the Subordinate Judge in the construction which he had placed upon the deed of settlement according to which he gave to the widow an estate for life with power to appropriate the profits with a vested remainder going on her d .....

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rovisions of the will of her husband. 50. Their Lordships held that under the terms of the will of Nobo Coomar Mullick the income of the estate as it fell due became the absolute property of Badam Coomaree as the widow of her husband. They, observed that in their opinion the claim of Badam Coomaree to this fund as having arisen from the income of the estate as her absolute property was made out, and they therefore repelled the contention that the fund should be considered on the same basis as savings of a Hindu widow made out of the property of her husband, in which case the presumption would be that such savings had been made for the benefits of her husband's estate unless shown to the contrary. They agreed with the observation of Mr. Justice Trevelyan of the Calcutta High Court that the corpus of the estate in this case had never gone to the widow and "there was no estate of her husband in her for her to augment" In the case of Veeraraghava Reddi v. Kota Reddi [1916] 31 M.L.J. 465 their Lordships of the Madras High Court held after a review of authorities that when a Hindu widow received property from the family for her maintenance (not as a Hindu widow) and out of .....

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the Raja's widow, could not, therefore, have succeeded to this property and her possession in respect thereof after the death of the Raja must be attributed to the will executed by him in her favour. As to the property entered in list B there can be no doubt that it would have gone to his widow under the ordinary Hindu law, but the estate conferred by the late Raja upon his widow in respect of the property given to her was not a Hindu widow's estate but merely a life estate. It is admitted by both the parties that Maharani Murar Kumari Devi succeeded to the property left by the late Raja not as his widow under the Hindu Law but as a legatee under his will dated the 17th of Juno 1907. This being the case she had no rights in the corpus, but was entitled to appropriate for her lifetime the profits of the property absolutely. The will expressly provides that she shall have no power under any circumstances, by sale, alienation, mortgage or otherwise to dispose of or encumber the whole or any portion of the moveable or immovable property for any period extending beyond the term of her natural life. 53. I have, therefore, been compelled to come to the conclusion that the estate c .....

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