Judgement

Appeal (No. 5 of 1925) from a decree of the High Court (November 21, 1922) affirming a decree of the Subordinate Judge of Meerut (July 18, 1919).

The suit was brought by the appellant, as the only surviving member of a joint Hindu family, governed by the Mitakshara, against the respondent, the widow of his deceased brother Baldeo Sahai, for a declaration that a document dated June 5, 1915, executed by himself and that brother was of no effect. Under the document, which was described as an agreement by way of a will and was registered, the respondent claimed an interest in the half of the joint family property.

The facts appear from the judgment of the Judicial Committee.

The trial judge made a decree dismissing the suit, and that decree was affirmed by the High Court.

The learned judges (Mears C.J. and Banerjea J.) were of opinion that the document was valid as a joint will, the brothers being the sole members of the joint family; and that in any case it was effectual as a mutual agreement for good consideration, each party giving up the possibility of his surviving the other. The judgment of the High Court is reported at I. L.R. 45 A. 245.

1926. Feb. 15, 16. Sir George Lowndes K.C. and E. B. Raikes for the appellant. The document of June 5, 1915, was of no effect. A member of a Mitakshara joint family cannot dispose of his interest by will Vitla Butten v. Yamenamma (( 1874) 8 Mad. H. C. R. 6.), approved by the Privy Council in Lakshman Dada Naik v. Ramchandra Dada Naik. (( 1880) L. R. 7 I. A. 181,194.) There cannot be a joint will which operates as a joint conveyance of joint Hindu property. [Reference was made to Jarman on Wills, 6th ed., p. 41, and Earl of Darlington v. Pulteney. ((1775) 1 Cowp. 260, 268.)] If the document was a will it was revocable by either party, and was revoked by the appellant. The High Court relied on an observation in the judgment of the Board in Munshi Indar Sahai v. Kunwar Shiam. (( 1912) 17 Cal. W. N. 509, 511.) The observation was, however, obiter and there was no discussion as to the law. The record in that case shows that the property was originally self-acquired, and there was an alleged agreement that it should be treated as not being joint property. The judgment in Suraj Bunsi Koer v. Sheo Proshad Singh (( 1878) L. R. 6 I. A. 88.) shows that the power of a member of a joint family to dispose of the share to which he would be entitled on partition is something grafted on Hindu law, and that the principle is not to be extended. The document was not effective as a family settlement. Neither party had any share in the property 3 only a right to partition. Further, the document attempts to create a devolution unknown to Hindu law and is therefore void under the Tagore case. (( 1872 L. R. I. A. Supp. 47.) It attempts not only to give an estate to the widows, but also to the daughters and daughters sons. Hindu law does not recognize property which is partly joint and partly separate. [Reference was also made to Maynes Hindu Law, paras. 424, 563, and (9th ed.) para. 417; and to Subbarami Reddi v. Ramamma. (( 1920) I. L. R. 43 M. 824.)]

Dunne K.C. and Dube for the respondent. The document was effective as a family settlement made with the consent of all the co-owners. Not only was the appellant a party to the settlement, but effect was given to it by mutation of names. The view upon which the observation in Munshi Indar Sahai v. Kunwar Shiam (( 1912) 17 Cal. W. N. 509, 511.) was based was correct; it is not conceivable that the point was overlooked. The owners of the complete interest in the property of a Mitakshara joint family can dispose of the whole property inter vivos Deendyal Lal v. Jugdeep Narain Singh (( 1877)

L. R. 4 I. A. 247, 252.); Sadabart Prasad Sahu v. Foolbash Koer. (( 1869) 3 Beng. L. R. (F. B.)31. In Subbarami Reddi v. Ramamma (( 1920) I. L. R. 43 M. 824.) there was no consent. The decision of the High Court was carefully limited to preserve the right of the widow under