Judgement

Consolidated Appeal (No. 22 of 1931) from four decrees of the High Court (January 30, 1929) which reversed two decrees of the Subordinate Judge of Patna (February 26, 1927).

The appeal related to succession to the property of one Ram Kishore, a member of a Hindu family governed by the Mitakshara, who died in August, 1927. The plaintiff-appellant, Ram Narain (since deceased), whose branch of the family had separated from Ram Kishores branch under a deed of partition in 1908, alleged that he and Ram Kishore had reunited in 1917, and claimed the whole property by survivorship ; alternatively, he claimed a half share under an ekrarnama or agreement of 1896. Mt. Pan Kuer, respondent No. 1, claimed under a will of the deceased the genuineness of which was no longer in dispute.

Ram Narain and Ram Kishore were distant cousins. The ekrarnama of 1896 was made between the father of Ram Narain and the father and uncle of Ram Kishore.

The facts, with a pedigree, appear from the judgment of the Judicial Committee.

The Subordinate Judge found that a reunion was proved in fact, but that it was invalid in law. He held however that under the ekrarnama of 1896 the plaintiff and his brother became entitled to the whole property he accordingly made a decree for a half share.

On appeal to the High Court the decree was set aside. Das J., with whose judgment Adami J. agreed, found that the alleged reunion was not proved, and held that such a reunion would be inoperative. The parties, he said, were bound by the interpretation which the author of the Mitakshara (in ch. 2, s. 9, paras. 2 and 3) had placed upon the text of Brihaspati. The authorities in Southern India and Bengal settled beyond doubt that the Mitakshara excluded reunion with relations other than a father, a brother, and a. paternal uncle Basanta Kumar Singha v. Jogendra Nath Singha. (( 1905) I. L. R. 33 C. 371.) The text had been differently interpreted in the Mithila school and in the Bombay school, and the Court had been urged to construe the text for itself. But, as had been pointed out by the Judicial Committee in Collector of Madura v. Moottoo Ramalinga Sathupathy (( 1868) 12 Moo. I. A. 397, 436.), the duty of a judge was " not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which he has to deal, and has there been sanctioned by usage." The learned judge doubted whether the ekrarnama was genuine. In any case, though a valid agreement between the parties, it was not one which the plaintiff could enforce ; if it could be enforced by the heirs it would be an invalid alteration of the Hindu law of succession.

1934. Oct. 29. De Gruyther K.C. and Wallach for the appellants did not seriously controvert the decision with regard to the alleged reunion ; they contended however that as the plaintiff was alive when the agreement of 1896 was made, his father entered into it on his behalf as well as his own, and that he was entitled to enforce it.

Dunne K.C. and Hyam for respondent No. 1 were not called upon.

Nov. 27. The judgment of their Lordships was delivered by

LORD THANKERTON. These are consolidated appeals from four decrees of the High Court of Judicature at Patna, dated January 30, 1929, which reversed two decrees of the Subordinate Judge of Patna, dated February 26, 1927.

The original appellant, Ram Narain Chaudry, was plaintiff in the two suits in which these decrees were made and which were instituted by him in 1924, but he has recently died and the present appellants are his personal representatives. The main question, which is common to both suits, is whether the original appellant was entitled to succeed to the whole estate of Ram Kishore Chaudry, who died on August 27, 1917, or otherwise to one half thereof.

The following pedigree shows the relationship of the parties concerned — Gayanandan Chaudry, who was the common ancest