Rampal vs Bhagwandas

Nigam, J.C.

Rampal filed Civil Suit No. 56 of 1945 seeking a declaration that the ''will'' dated 29-5-1937 executed by Sm. Koki was null and void and that she had no right or title to execute a ''will'' in respect of the ancestral property of Amolak Chand. A short pedigree will be helpful in understanding the case:

Jasrup

Shambhu

Amolakchand=Sm. Koki

Hazarimal

Danraj (adopted)

Sm. Pani

BhagwanDass

Dhanraj (adopted)

Anandram

Bhagwandas (adopted)

(adopted by Danraj)

by Hazirarimal)

Ramlal (Plaintiff)

Amolak Chand died in 1915. Bhagwandas was adopted by Dhanraj in 1925. The ''will'' in question was executed in 1937 and Sm. Koki died in July 1942. By this ''will'' Sm. Koki purported to bequeath all her property to her natural son Bhagwandas. The plaintiff, Rampal, came to Court for a declaration that the ''will'' bequeathing the property to Bhagwandas was null and void and indirectly seeking a declaration that Bhagwandas did not remain entitled to any family property after his adoption in 1925.

3.The suit was decreed by the learned Subordinate Judge. The defendant, Bhagwandas appealed to the District Judge, who set aside the lower Court''s judgment and dismissed the suit with costs. Against that judgment and decree, Rampal, plaintiff, has come up in second appeal. I have heard the learned counsel for the parties.

The First contention of the learned counsel for the appellant is that on the death of Amolakchand the property did not vest absolutely in Bhagwandas, the sole surviving coparcener, because the property remained subject to Sm. Koki''s right of maintenance. The learned counsel has not shown me any law or ruling in support of his contention with which I am unable to agree. In my view the property vested absolutely in Bhagwandas, who was the only son and the sole surviving coparcener as Amolak Chand died before 1937.

The next question for my determination is whether Bhagwan Das would be divested of this property (which he had god as the sole surviving coparcener) on his adoption by Dhanraj in the year 1925. The learned counsel for the appellant has referred me to the rulings on which he relied in the Court of the District Judge and which have been discussed by the learned District Judge in his judgment. The learned counsel has also referred me to page 593 of Mulla''s Hindu Law, 11th Edition.

The learned counsel for the respondent has referred me to -- ''Harlal v. Ganga Ram'', AIR 1951 P&H 142 (A) in addition to the rulings referred to by the learned District Judge. From Mulla''s Hindu Law it is clear that there is divergence between the views of the various High Courts and that Calcutta and Madras are ranged against Bombay. The view taken by the Bombay High Court is not consistent. In addition the learned counsel has referred me to the rulings of the Punjab and Nagpur High Courts in support of his contention that the adoption does not divest the adoptee of the property which had already vested in him. I am of opinion that the majority view should be accepted. I, therefore, agree with the conclusion of the learned District Judge that on adoption the person adopted will not be divested of the property which has vested in him.

It follows that no property ever vested in Sm. Koki. As such, technically speaking, the ''will'' executed by her on 29-5-1937 is null and void. I am, however, of opinion that it is not necessary to grant a declaration that the ''will'' is null and void as for reasons stated above, the plaintiff does not stand to gain by such a declaration.

The result is that this appeal fails and is dismissed. In the appeal the appellant will pay half the costs of the respondent.