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TMI Blog1898 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... except one of the five villages named Bakewar. As to that village the District Judge held that it was ancestral property which Jaswant had no power to alienate by way of gift, and he decreed possession of it to the plaintiff. Both parties appealed to the High Court. Separate orders were made on the two appeals. The plaintiff's appeal was dismissed; the defendant's was allowed; so that the plaintiff's suit stood dismissed as to all his claims. The plaintiff has appealed from both these orders, and his appeals, in form two but in substance one, have now been argued. 2. Except as regards the village of Bakewar, which has been the subject of difference between the two Courts below, the facts of the case may be briefly stated : All the villages in suit were at one time the estate of Khuman Singh, the father of Jaswant. Through extravagance or misfortune Khuman fell into poverty and he parted with the villages; whether in fact or only in appearance is matter of dispute in this suit. Jaswant became a successful man of business, and he also rendered active and valuable services to the Government at the time of the Sepoy Mutiny. Thus he became able to repossess himself of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... life only; he is to take the 10 per cent, malikana in absolute ownership. Both the Courts below have taken substantially the same view, and the appeal fails on this point. 5. The next question is whether Jaswant could lawfully give the property in question to his wife. The District Judge states that the point is one on which there has been a great conflict of opinion; and without discussing it further, he says that he follows the latest rulings in holding that if the property comprised in the gift was Jaswant's self-acquired property he could deal with it as he saw fit. The High Court have given no opinion on the point except so far as an opinion is involved in their affirmation of the District Judge's decree, nor did they hear argument upon it. It was one point of appeal by the plaintiff, but his counsel did not open it till at the very end of his reply, when the Court ruled that it was not competent for him to argue it. In delivering judgment they stated their opinion that the plaintiff, by not addressing to them any remarks in support of this argument, must be taken virtually to have abandoned it. 6. Mr. Ross has raised the question again in this appeal, and has addre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be divided; and in Clause 1 he says, "Whatever else is acquired by the coparcener himself...does not appertain to the heirs...nor shall be who recovers hereditary property which had been taken away give it up to the parceners." Clause 2 enlarges on the same point. 9. Pausing there to consider the authorities apart from decisions, their Lordships observe that the rule laid down in Section I. Clause 27, of the Mitakshara rests upon an ulterior reason, "since it is ordained," and so forth; and the reason ranges so far beyond the rule as seriously to weaken its support of a positive rule. The necessity of support to children applies in principle to the alienation of moveable property as well as immovable. And the assertion of rights in those who are unbegotten conflicts with the principle, uncontradicted as their Lordships understand by any decision, that a man may alienate even his descended estate if he has no child, or at least if he has no coparcener, in existence. See the cases cited for this proposition in Mr. Mayne's book on Hindu Law, 8. 318. 10. All these old text-books and commentaries are apt to mingle religious and moral considerations, not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le, after showing that by that time testamentary powers, long disputed, had been established in Hindu law, spoke thus : "Accordingly it has been settled that even in those parts of India which are governed by the stricter law of the Mitakshara a Hindu without male descendants may dispose by will of his separate and self-acquired property, whether moveable or immovable; and that one having male descendants may so dispose of self-acquired property if moveable; subject perhaps to the restriction that he cannot wholly disinherit any one of such descendants." It is argued that this passage shows that, in the opinion of the Board the power of disposition by will does not extend to land, and does not exist if there are male descendants. In that case, however, the Board gave no judicial opinion upon the point, because they held that the property in dispute was an indivisible Raj, subject to the custom of primogeniture, and that, as the heir was a consenting party to the disposition in dispute, the question of the testator's power did not arise. It is true that they did not affirm the proposition now contended for by the defendant. 13. In the Bithoor Case 9 Moore's Ind. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is their Lordships conceive is the kind of change referred to by Lord Kingsdown in the Bithoor Case 9 Moore's Ind Ap. Ca. 96. 15. The earliest case in which their Lordships have found any exact comparison of the texts of the Mitakshara was decided by a Division of the High Court of Calcutta in the year 1863 : Muddun Gopal v. Ram Buksh Pandey 6 Suth W.R. 71. In that case the plaintiff's father had sold to the defendant property which was held to be self-acquired. The learned judges carefully compared the texts of the Mitakshara. They treat those of Sections IV. and V. as the governing ones. They conclude : "We must hold that, according to the law as laid down in the Mitakshara, a father is not incompetent to sell Immovable property acquired by himself." 16. In the year 1872 the question was discussed before a full bench in Calcutta Baboo Nund Coomar Lall v. Razeeooddeen Hossein (1872) 10 Beng. L.R. 183, 193. A son disputed his father's disposition of property inherited by the father from a cousin and not from the grandfather. Sir Richard Couch compares the texts and quotes cases which, as he says, exhibit the better opinion among commentators. His conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the aid of the ancestral estate shall be divided equally, or unequally, or not divided at all, at his pleasure. The father has full dominion over...that property which is gained by him through skill, valour, or the like - he may give it away at his pleasure," and so forth. In p. 309 occurs this passage : "It is declared in the work called Prakasa that Immovable and biped property, even if it be self-acquired, cannot be sold or given away without the consent of the sons. They who are born...even they who are not yet conceived, require paternal property for their maintenance, therefore it is improper to deprive them of it." The decision of this Board was in accordance with the first set of texts. It is true that p. 309 is not referred to in the judgment, but it can hardly be supposed that in a case fought up to the highest tribunal it was overlooked. 20. For the foregoing reasons their Lordships have no hesitation in laying it down that the law of the Mitakshara is shown, after long conflicts of opinion, due to the conflicting nature of the original texts, to be that which has been adopted from Sir William Macnaghten by the Courts of Calcutta and Allahabad. 21. Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te. 25. On Kunjbehari's part we find that in an irregular way, by indorsement on the decree of February, 1856, he purported to annul that decree in favour of Adhar Kunwar. The consideration stated is the sum of ₹ 4526, apparently less than a year's revenue. That indorsement is dated June 22, 1858. The defendant alleges that soon afterwards Adhar Kunwar, also in an irregular way, made a verbal gift of the property to Jaswant. The certain thing is that about this time Jaswant regained possession and remained in possession until his death. How far his title depended on Adhar Kunwar's gift, how far on Kunjbehari's relinquishment of possession and practical reconveyance, and how far Kunjbehari's acceptance of the small sum given for purchase money was influenced by Jaswant's services to him, or why he took so small a sum, are questions which are not, and which need not be, cleared up. 26. In the year 1868 Kunjbehari sued to establish his right to Bakewar. The defendants were Jaswant and Sheo Narain, to whom it was stated that Jaswant had sold the property. Kunjbehari alleged that the indorsement on the decree was a forgery, and gave a different account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e former title of Bake war was broken and its ancestral character destroyed. The exact mode of its reacquisition by Adhar Kunwar and Jaswant is not material. For money or for services, it passed from Kunjbehari to Jaswant, and so was acquired by him. For the above reasons their Lordships agree with the High Court on this point. 31. The only other point taken for the appellant is one of a very unusual character. It is alleged that the decree of the High Court is void, because one of the judges, Mr. Burkitt, was not properly appointed. The point was not taken in the Court below, nor is the nature of it explained in the printed case of the appellant. Their Lordships understand that the appointment is questioned on the ground that it was not made immediately upon, or within a reasonable time after, the occurrence of the vacancy which it supplied. Their Lordships cannot discover any ground for the objection. Under the High Courts Act the Lieutenant-Governor of the North-Western Provinces has power to appoint an acting judge upon the happening of a vacancy among the puisne judges of the Court. No limit of time is mentioned within which the appointment should be made. That is left to the ..... 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