Judgement

Consolidated Appeals from three decrees of the High Court (May 22, 1913), two of which affirmed decrees of the Court of the first Subordinate Judge of Saran, and one of which modified a decree of that Court.

The three suits out of which the consolidated appeals arose were brought in 1907 by Dhanukhdhari Prashad Singh against Musammat Bhagwat Koer and Ragheshwar Indar Sahi, whom she had purported to adopt to her deceased husband Mahabir Singh ; a second plaintiff, a purchaser to whom it is not necessary to refer further, was joined as a plaintiff in the second and third suit.

The facts giving rise to the litigation appear from the judgment of their Lordships.

The nature of the suits and the decisions arrived at by the Subordinate Judge and the High Court (which heard the three appeals together) were shortly as follows.

Suit No. 200 of 1907 was to set aside the adoption. Both Courts held that in the events which happened the adoption was not authorized by the will of Mahabir, and the adoption was accordingly set aside.

Suit No. 198 of 1907 was for a declaration that under the will of Mahabir and in the events which happened, Dhanukhdhari was entitled to immediate possession of Mahabirs estate. In this suit the rights of the parties depended entirely upon the true construction of the will of Mahabir, the material parts of which are set out in the judgment of their Lordships. Both Courts held that under that will Dhanukhdhari would be entitled only upon the death of Bhagwat Koer and that the suit for immediate possession failed ; the High Court varied the decree by striking out a declaration under s. 42 of the Specific Relief Act, 1877, that Dhanukhdhari was entitled to succeed upon the death of Bhagwat Koer.

Suit No. 199 of 1907 In this suit Dhanukhdhari claimed that Jugalkishore who died in 1872, died separate, and that he (Dhanukhdhari) was entitled to succeed to the deceaseds estate upon the death in 1904 of Anandi Koer, the deceaseds widow. Both Courts found (contrary to a decision given in 1874 in proceedings under Act XXVII. of 1860) that in 1864 there had been a partition between Jugalkishore and his brothers, and held that Anandi Koer was therefore entitled to the estate for her life, and that upon her death Dhanukhdhari succeeded as reversioner. The High Court affirmed the view of the trial Judge that the ekrarnama executed in 1874 on behalf of Bhagwat Koer, the terms of which appear from the judgment of their Lordships, was invalid on the ground that it was not within the authority of her agent, that it was obtained by corruption, and had not been ratified by her. It was accordingly unnecessary for the High Court to consider what would have been the legal effect of that agreement. The learned judges (Chitty and Teunon JJ.), however, said " the document in itself does not in our opinion amount to such a surrender or relinquishment as the defendants contend. It amounts simply to an admission that the three brothers were joint, an admission which clearly would not bind the plaintiff, even if it had been made. No doubt Anandi Koer, who lived for some 30 years after these events, was content to receive the maintenance, but there is nothing to show that she had independent advice or was ever really informed of her rights in the matter." They rejected a plea of limitation, pointing out that under Art. 141 of Sched. II. of the Indian Limitation Act, 1877, the period within which Dhanukhdhari as reversioner could claim was 12 years from the death of Anandi Koer, and that it was not material that Anandi had allowed a claim by her to become barred. In the result Dhanukhdhari was given a decree.

The first and the third of the present appeals (namely, those in suits No. 200 and No. 199), were by Bhagwat Koer and the adopted son, and the second (namely, that in suit No. 199) was by Dhanukhdhari.

1919. May 19, 20. De Gruyther K.C. and Dube for the appellants, Bhagwat Koer and the adopted son. As to suit No. 200 The adoption