LAWS(BOM)-1939-3-10

BIRADH MAL Vs. PRABHABHATI KUNWAR

Decided On March 27, 1939
BIRADH MAL Appellant
V/S
PRABHABHATI KUNWAR Respondents

JUDGEMENT

(1.) HAMIR Singh (d. 1847-48).: : : : Sujan Mal Sameer Mal Umed Mal (d. 1863). (d. 1897). (d. 1923). : : : : : : __________________________________________ July, 1924). : : : : : : : : : Sirah Mal Abhey Mal Biradh Mal Gadh Mal : : (d. 1900). (adopted to (d.31-8-35). (adopted to : : : Umed Mal). : Sirah Mal). : Gadh Mal Omrao Mal : : : (Appellant No. 2). (Appellant No. 1). : _______________________________________ : : : : : : : : : Omrao Mal Sardar Mal Fateh Mal Baby : : (adopted to : : Biradh Mal). :____________________________________ : : : Abhey Mal Raj Mal Chand Mal (d. (d. 1901). (d. 1920). : : : Sobhag Mal Guman Mal=Manohar Kunwar Kan Mal (Respondent No. 4).(d.1914).(Appellant No. 4). (d.19-7-34).: : Jeet Mal=Prabhabhati Kunwar : (d. March, 1923. ) (Respondent No. 1) :: ________________________ : : Pan Mal Anand Mal (Appellant No. 3 (a)). (Appellant No. 3(b)).

(2.) THIS pedigree table has reference to a family of the sub-caste "Lodha" at Ajmer. It is possessed of a trading and banking business carried on under the name of Kanwalnain Hamir Singh. The headquarters of the business are in Ajmer but it is carried on in some sixteen different places throughout India under various names and in the case of three of the branch businesses it is said that a stranger to the family has an interest. A considerable amount of immoveable property is owned by the family : it is not used in the business but the rents and profits are received by the business and are dealt with as income thereof. The business is said to have been established for over a hundred years. There is some dispute about the correct description of the family : they are said to be Oswal Jains, but the appellants are concerned to maintain that though they are Oswals by caste they are not Jains and that they are governed by the Mitakshara.

(3.) NO steps were taken by the plaintiffs to have a guardian ad litem appointed for the boy, but his father and the widow filed similar written statements (July 30) admitting the joint status of the family and defending the adoption as valid. In December they sought to amend by pleading that Jeet Mal had died separate in food, worship and estate, but leave to amend was refused (March 14, 1925). On NOvember 6, 1925, the widow again applied to amend her defence alleging that her husband had died separate, and repudiating the adoption as having been due to fraud and misrepresentation practised upon her. The District Judge (August 31, 1926), allowed her to amend her defence as to the separate status of her husband but refused to permit her to repudiate the adoption. The boy's father, Bhanwarmal, was not allowed to amend his written statement so as to withdraw his admission of Jeet Mal's joint status. In August, 1926, it was discovered that no guardian ad litem had been appointed for the boy and Bhanwarmal was appointed. On NOvember 22, 1929, the learned Additional District Judge gave judgment in the suit. He held that the factum of adoption had not been established as no giving and taking of the boy had been proved to have taken place on June 30, 1924: accordingly he declared the adoption to be "null and void and cancelled". He dismissed the claim for an injunction to restrain the widow from interfering with the business, reciting in his decree that "it is held that as the widow of a separated Jain governed by Hindu law she has the right as such widow to a half of a third share in the tisira or unpartitioned property and assets of the firm of Kanwalnain Hamir Singh to which her deceased husband Jeet Mal was entitled".