Judgement

Four Consolidated Appeals (No. 57 of 1930) from three decrees of the High Court (August 16, 1928) affirming one decree and varying another decree of the Subordinate Judge of Motihari.

The litigation related to properties of great value which belonged to Raja Mohan Bikram Singh who died childless on April 18, 1912, and which was concurrently found to be self-acquired property.

The main question arising was whether the respondent, who was concurrently found to have been adopted in 1903, could recover possession from the appellant, the testators widow. The appellant was in possession under a will of 1904 reviving a will of 1901 in her favour and revoking a will of 1903 in favour of the first respondent. The respondents suit was brought on April 15, 1924.

The facts are fully stated in the judgment of the Judicial Committee.

The Subordinate Judge made a decree in favour of the respondent. His decision was substantially affirmed by the High Court (Kulwant Sahay and Macpherson JJ.) the decrees being varied only as to a claim to certain cash, which was held to be barred, and as to the mesne profits. The grounds of the judgment on the main question appear from the present judgment.

1931. March 2, 3, 5, 6, 10, 13, 16, 17. Dunne K.C and Dube K.C for the appellant. Although both Courts found that there was a contract by the testator in consideration of the first respondent being given in adoption they differed as to its terms. The findings therefore are not concurrent within the rule followed by the Board. The will of 1903 is inconsistent with the contract pleaded, as under the will the respondent took nothing if there should be either a natural son or the representative of a deceased natural son. The contract found by the High Court not to revoke the will of 1903 was not pleaded. The evidence established no contract by the testator. But even if a contract was proved the suit fails. The right to enforce it by specific performance was barred under art. 113 of the Limitation Act. That being so the respondent cannot rely upon any equitable right under it having regard to the recent decision of the Board in Ariff v. Jadunath Majumdar (( 1931) L. R. 58 I. A. 91.) and the Transfer of Property Act, s. 54. Although the respondent was not a party to the contract, he could have sued to enforce it, as it was for his benefit Khwaja Muhammad Khan v. Husaini Begam. (( 1910) L. R. 37 I. A. 152, 158.) In any case he could have sued for a declaration of his rights. If there was a trust that cause of action arose as soon as he knew that the will had been revoked. Even if he did not know until the probate proceedings, his remedy was barred long since under art. 120. The High Court rightly held that the will of 1903 did not operate as a conveyance, and that the respondent could not claim as devisee under the will of 1901.

Wilfrid Greene K.C, De Gruyther K.C and Hyam for the first respondent. Both Courts found that there was a contract between the testator and the respondents natural father, though they were not agreed as to its terms. As the adoption would deprive the respondent of his chance of succeeding to

13 Law Rep. 58 Ind. App. 279 ( 1930- 1931) Rani C hhatra Kumari Devi V. Prince Mohan Bikram Shah

115

the Nepal Raj it is highly probable that there was a contract securing his right to the property. The verbal evidence, in conjunction with the undertaking in the will of 1903 not to revoke it, and the fact that a copy of the will was sent to the respondents natural family, establishes a contract by the testator not to revoke. Accordingly from the death of the testator, the property, whether in the hands of his executor or a devisee, was bound by a trust in favour of the respondent and he was entitled to have it handed over to him. The principles apply which were laid down by Lord Camden in Dufour v. Pereira ((1769) Harg. Jur. Arg. 304; reported shortly, Dick . 419.), and recently recognized in Gray v. Perpetual Trustee Co. ([ 1928] A. C. 391.)