(1.) This appeal raises two interesting and important questions of Hindu Law. It was originally opened before Mr. Justice Piggott and myself, and subsequently we, deemed it proper to have the weight and assistance of Mr. Justice Banerji s wide knowledge and long experience.
(2.) The facts are quite simple and the points of law stand out in a form very convenient for a clear pronouncement. Lalta Prasad, the plaintiff in the court below and the appellant here, is the grandson of one Gajadhar Lal. Gajadhar Lal had a son,. who died during his life-time, and, in the year 1914, the appellant was about seventeen years of age. Gajadhar Lal and the mother of the appellant were not on good terms, and on the 18th of November, 1914, the appellant and his mother, apparently living away from the residence of the grandfather, commenced a suit for partition, the appellant, being the plaintiff in that case, suing by his mother as next friend. There is nothing to show that the grandfather ever knew of that suit, because, having made a will on the 22nd of November, 1914, he died on the 25th of November, 1914. The terms of the will were displeasing to the appellant, and one of the points taken in the court below and also argued before us was that the grandfather was not, at the time of the execution of the will, of sound disposing mind and that the will was consequently null and void. We examined the evidence on this part of the case and intimated to counsel that in our view, the appellant s contention in that respect was wrong, and thereupon we came at once to what are substantial points in dispute. One of the provisions of the will of the 22nd of November, 1914, was in these terms: "As all the expenses of the temples at Mauzas Bangawan and Ramapur, pargana Cawnpore, in which are seated the idols of Sri Mahadeoji and which (both) were built by my ancestors, have always been defrayed from the family -property, it is incumbent on me, the executant to set apart (a patron of the property for their expenses and management, so that the souls of my ancestors and the members of the family may be benefited thereby in the next worlds and my religious duties may be performed. With this view dedicate the property entered in list B, which is a portion of the entire property owned by me, the executant, to Sri Mahadeoji installed in the temples " aforesaid. The said Sri Mahadeoji shall be the owner thereof neither Lalla Din alias Munna, nor any other person shall have-any right in it. It shall be the exclusive property of Sri Mahadeoji The management of the property shall be made by Lalta Din alias Munna, through his mother, Musammat Sheo Rana Kunwar, during the period of his minority, and by himself after he has become adult." There was also a question as to whether the family was joint or separate, and the history of the family was quite clear down to the year 1911. From 1911 until 1914, in fact, up to the death of the testator, there was no suggestion of any amicable partition, but it was said that partition was ipso facto effected by means of a suit instituted on the 18th of November. These, therefore, are the two points for decision.
(3.) First, whether the institution of the suit by the appellant with his mother as next friend by itself and of itself has the effect in law of creating an alteration of the status of the family so that the -family hitherto joint becomes at once a separate family. The second point is whether the bequest contained in the fifth clause of the will was a competent bequest for a Hindu karta to make, if it was decided that in the circumstances the testator was joint at the time of his death.