AI Structured Summary
Not yet generated for this judgment
Judgment
Fazl Ali, J.—This appeal arises out of a suit which was instituted by the respondent for a declaration that she is the daughter of one Padarat Singh, deceased, and that the ekrarnama, executed on 28th February 1927, by defendant 3 and the wills executed on 10th December 1926 and 28th February 1927, in which the plaintiff''s title was denied and which related to the property left by Padarat Singh, were not binding on her. Two questions arose for determination in the trial Court one of which was a question of fact and the other was a question of law. As the contesting defendants, namely, defendants 1 to 3 denied that the plaintiff was the daughter of Padarat Singh and asserted that she was in fact the daughter of one Risal Singh, an agnate of Padarat Singh the question of fact which the Court had to decide was whether in fact she was the daughter of Padarat Singh.
The question of law which was to be decided was whether a declaratory suit was maintainable where a limited owner, such as a Hindu widow, had disposed of her husband''s property by means of a will. The learned Subordinate Judge in whose Court the suit was instituted has decided both the questions in favour of the plaintiff and hence this appeal by defendants 1 to 3.
On the question whether the plaintiff is the daughter of Padarat Singh or not the evidence adduced on her behalf seems to be overwhelming.
It is asserted by the plaintiff that she is the daughter of Padarat Singh by his wife Jaipal Kuer, a lady who is said to have belonged to village Dumaria. The important fact to be noticed is that the defendants, although they definitely assert that she was not the daughter of Padarat Singh, have not denied either in their written statement or in the evidence adduced that her mother was Jaipal Kuer, nor have they stated anywhere who her mother was. It is therefore rightly contended by the learned Counsel for the respondent that the issue to be determined in this case is narrowed down to the question whether Jaipal Kuer was the wife of Padarat Singh or not. Now, there are two important documents on the record which seem to me to establish beyond doubt that Jaipal was the wife of Padarat Singh.
One of these is Ex. 2 which was a deed of agreement executed on 29th June 1872 by Padarat Singh and a number of his agnates in which Padarat Singh described himself as an agent of Mt. Jaipal Kuer who was described to be his wife. The second important document is a notice issued to Jaipal Kuar in a case pending in the Calcutta High Court on 24th March 1873 in which Jaipal Kuer is described as the widow of Padarat Singh. It is admitted by both the parties that Padarat Singh was alive in 1873 and therefore the description of Jaipal Kuer as the widow of Padarat Singh seems to be a mistake. But the fact that Jaipal Kuer''s name is associated with that of Padarat Singh appears to me to be more than a mere coincidence. There is also the evidence of a number of witnesses of village Dumaria, to which Jaipal Kuer admittedly belonged, to the effect that Jaipal had been married to Padarat Singh. The evidence of these witnesses has been read out to us in course of the argument and we see no reason to disbelieve it.
In my opinion it has been established beyond doubt that Jaipal Kuer was the wife of Padarat Singh and that by itself appears to me to be sufficient to dispose of the defence that the plaintiff is not the daughter of Padarat Singh. There is however a mass of evidence on the side of the plaintiff which consists of statements made by some very old residents of village Pokhrahan where Padarat admittedly lived and certain persons who are alleged to be connected with the family of Padarat in the capacity of purohits, labourers and relations.
The evidence of these witnesses has been accepted by the trial Court which had the advantage of noting their demeanour and I see no reason to differ from the view taken by the trial Court. Four witnesses only have been examined on behalf of the defendants, but their evidence appears to me to be wholly unreliable. Lallu Singh and Mt. Bhago Kuer are both defendants in the case and are therefore interested. Janki Singh, D.W. 2, says that he has no concern with the plaintiff''s family and admits that he was convicted in a criminal case. Defendant''s witness 1, Ramkeshwar Singh is a young man of 32 years of age. He states in his evidence that he learnt that the plaintiff was not the daughter of Padarat Singh from his mother and father on inquiry, but he is not in a position to say whether there was any special reason for him to inquire about the parentage of the plaintiff.
The decision of the trial Court therefore appears to me to be correct so far as the issue of fact is concerned.
The question of law, however is a more difficult one. There are a number of decisions including the decision of the Judicial Committee of the Privy Council in Jaipal Kuer v. Indar Bahadur (1901) 26 All 238, where the view has been taken that the execution of a will by a limited owner, such as a Hindu widow, affords, as a general rule no sufficient reason for granting a declaratory decree. This dictum of the Privy Council was particularly'' emphasised in the decision of the Allahabad High Court in Umrao Kunwar v. Badri 1915 All 252 and Das Mal v. Ram Chand 1923 Lah 406. It is to be noticed however that their Lordships of the Judicial Committee of the Privy Council expressed their view in very guarded terms and in the particular case which was before them they refrained from Betting aside the decree of the Courts below granting a declaratory decree. The observation made by their Lordships which are pertinent to this case were these:
But their Lordships are always slow to reverse the decisions of Courts below made in the deliberate exercise of a discretion entrusted to them by law. And in the present case there are special reasons why they should hesitate before so interfering at the instance of the present appellants. The will of appellant 1, taken by itself, left it open to doubt on what ground she relied in what she was doing. But when the appellants came to file their written statement, and thereby to define their position and put their own interpretation upon what had gone before, there was no ambiguity left. It was made clear that they relied upon an alleged title in appellant 1 inconsistent with any present or future rights of the respondent or any other reversionary heir.
It may also be noted that in Umrao Kunwar v. Badri 1915 All 252, where the next reversioner bad brought a suit for declaration that a will executed by a Hindu widow was in-effectual as against his interest, the trial Court refused to grant such a decree in exercise of the discretion vested in it by law, but the learned District Judge reversed his decision and granted a decree, purporting to act on the decision of the Privy Council in the case to which I have just now referred. It was pointed out by the High Court that the learned District Judge while purporting to follow the Privy Council ruling quoted by him had really departed from the spirit of that decision by interfering with the decision of the Court of first instance. The facts in Das Mal v. Ram Chand 1923 Lah 406, were somewhat similar and here also the suit brought by the plaintiff had been dismissed by the Court of first instance and decreed by the Court of appeal.
It was however pointed out in Raghunath Baraei v. Jainarain Baraei 1932 All 661, that where a declaration by a reversioner in respect of a deed is to be refused, it should be refused at a preliminary stage of the litigation and not by a Court of appeal after the issues on fact and law had been decided.
Now, it appears to me that a decree having been obtained by the plaintiff in the first Court it ought not to be set aside by this Court in appeal. The plaintiff sued in this case as the next reversioner, but she had a more serious cause of action because by the wills which are impugned in this case it is denied that she is the daughter of Padarat Singh. It appears that two wills were executed by defendant 1, one on 10th December 1926 and the other on 28th February 1927.
By the first will the entire property was bequeathed by defendant 1 to her brother''s son, defendant 2. By the second will the first will was revoked and a four annas share was given to defendant 3 who is alleged to be the next agnate of Padarat Singh and 12 annas share was given to defendant 2. It was on the date on which the second will was executed that a deed of relinquishment was executed by defendant 2 relinquishing all his rights to the 12 annas share in the property in consideration of the fact that a four annas share had been left to him by the last will of Mt. Bhago Kuer. The second will is not before us, but it is alleged in the plaint that by both the wills,
the existence of the plaintiff and the fact of her being the future heir and next reversioner of the deceased Padarat Singh has been denied.
This statement is not specifically denied in the written statement and it is fully supported by the contents of the will dated 10th December 1926 in which Mt. Bhago Kuer,
solemnly declares, admits and publicly assures one and all that long ago my husband died without leaving behind any issue except myself his widow.
This Recital in the will clearly amounts to a denial of the fact that Padarat Singh had left any issue which was tantamount to a denial of the plaintiff''s parentage. The question of the plaintiff''s parentage is undoubtedly in one sense a question of legal status and in my opinion on that ground alone the plaintiff was entitled to maintain the suit.
However that may be, in the present case it is quite apparent that the defendants are not only interested in denying the plaintiff''s parentage, but have in fact denied it and it has been established clearly by the evidence adduced by the plaintiff that the denial of the defendants is entirely false. The plaintiff has also examined in this case a number of witnesses who are between 70 and 80 years old and as the learned Counsel for the respondent contends, the evidence which is now available to her might be lost if the decision of this issue is postponed or delayed. In the peculiar circumstances of the case I would affirm the decision of the lower appellate Court and dismiss the appeal with costs.
James, J.
I agree.