Judgement

Appeal (No. 40 of 1927) from a decree of the Court of the Judicial Commissioner of the North-West Frontier Province (March 11, 1923), affirming a decree of the Divisional Judge of Peshawar.

In 1919 one Teku Ram, a Hindu, deposited with the Alliance Bank of Simla a lakh of rupees, which was his self-acquired property ; the deposit was in the names of himself and his wife Gujri (the second appellant), and was made payable to either or the survivor. He died in 1920, being survived by his said wife" and three sons. After his death Gujri withdrew the money with interest through her son Guran Ditta, the first appellant.

In 1921 the respondent, the eldest son, brought the present suit against his mother and his two brothers ; he alleged that he and his brothers formed a joint Hindu family, and prayed for a decree for a third of the money against any of the defendants who was in possession of the fund. The defendants by their written statement alleged that the money-belonged to Gujri under a will made by her husband, alternatively that it was a gift by him to her ; they also pleaded that the suit was incompetent, since it was for a partial partition.

By a preliminary judgment the Subordinate Judge held that the suit lay; issues were subsequently framed and evidence adduced.

The Subordinate Judge found that the deceased had cancelled the alleged will, and held that there was no gift of the money to the widow. A decree for a sum equal to a third of the money paid over, together with interest, was made against the appellants—namely, the widow and the son—to whom the money had been paid.

An appeal and cross-objections were heard by the Additional Judicial Commissioner and were dismissed.

The Judicial Committee granted special leave to appeal.

1928. March 1, 2. Dunne K.C. and Wallach for the appellants. Having regard to the terms of the deposit and the oral evidence there was a gift of the deposited money to the widow. If that was not so the money, upon Teku Rams death, was joint family property, and the present suit, being in effect one claiming a partial partition, did not lie Haridas Sanyal v. Pram Nath Sanyal (( 1886) I. L. R. 12 C. 566.) ; Jogendra Nath Mukerji v. Jugobundhu Mukerji (( 1886) I. L. R. 14 C. 122.); Shivmurteppa v. Virappa. (( 1899) I. L. R. 24 B. 128.)

De Gruyther K.C. and Parikh for the respondent. The oral evidence does not show an intention by the deceased to make a gift of the money to his wife. In the cancelled will he refers to the money as his own. There was a resulting trust in his favour as owner. There is no presumption in India of an intended advancement in favour of a wife Gopeekrist v. Gungapersaud (( 1854) 6 Moo. I. A. 53.) ; Kerwick v. Kerwick (( 1920) L. R. 47 I. A. 275.); Bai Motivahoo v. Purshotam Dayal. (( 1904) I. L.

R. 29 B. 306.) In the circumstances of the present case it was competent to the Court to decree to the plaintiff his share of the money Iburamsa Rowthan v. Theruvenkatasami Naick. (( 1910) I. L. R. 34 M. 269.) Further, the real, dispute was whether the money belonged to the widow or not; even if there was an irregularity in the form of the suit the decree was properly affirmed, having regard to s. 99 of the Code of Civil Procedure. If the Board is of opinion that the plaintiff is not entitled to a decree for a third, there should be an order directing payment of that share to him on behalf of the joint family. A suit for partition has now been instituted. But the appellants are not entitled to rely on any technical difficulty, since the only question raised by their petition for special leave to appeal was whether there was or was not a gift.

Dunne K.C. .in reply. Every point is open to the appellants ; there is no rule confining an appellant to the points raised in his petition Sheo Singh Rae v. Dakho. (( 1878) L. R. 5 I. A. 87,114.) The plaintiff could and should have brought a suit for partition instead of bringing this suit; having regard to s. 42 of the Specific Relief Act