BEHARI LAL Vs. SHIVA NARAIN; BADRI PRASAD

JUDGEMENT

(1.) These two appeals arise out of the same suit, No. 1 of 1920, instituted in the Court of the District Judge of Farrukhabad under Section 92 of the C.P.C.

(2.) One Narain Das was the owner of a large property, consisting of zemindaris, bonds, moveables, etc. These were all his self-acquired properties. He executed a Will on the 11 of September 1901 the effect of which will have to be considered in greater detail later on. Suffice it to say for the present that, thereby, he gave one-half of the property to his wife absolutely and he directed that the income from the other half should be spent on certain charities connected with the Arya Samaj religious rites and education of boys and girls. He had a wife's brother in Behari Lal, the appellant in Appeal No. 131 of 1921. He directed by the Will that Behari Lal should manage the property and render accounts to his wife. He also desired that a party of five gentlemen, including Behari Lal himself, should form an advisory board for the carrying out of these charities. Narain Das died soon after the execution of the Will. His wife Musammat Chironja died on the 20 of June 1903. Their daughter Musammat Shushila died on the 19 of April 1907. Narain Das had a brother Parmanand,. whose sons Badri Prasad and Lakhmi Chand are the appellants in the connected Appeal No. 204 of 1921. On the death of Musammat Chironja, Behari Lal applied for the issue of a Probate of the Will of Narain Das and in spite of objections filed on behalf of Narain Das's daughter and his nephews Badri Prasad and Lakhmi Chand, by order dated the 14 of August 1903, a Probate was issued. On the death of Musammat Shushila, a suit was instituted by Badri Prasad and Lakhmi Chand in the Court of the Subordinate Judge for recovery of the entire property of Narain Das against Behari Lal. They claimed as the lawful heirs of Musammat Chironja and Narain Das. The half share given to Musammat Chironja was claimed by way of defence by Behari Lal on the allegation that Musammat Chironja had not been married in one of the approved forms and, therefore, the property, being her stridhan, went to the heirs of her father and, therefore, to Behari Lal himself. The suit was, however, csmpromised on the 16 of April 1908 and it was agreed that Badri Prasad and Lakhmi Chand should pay to Behari Lal a sum of Rs. 6,000 and Behari Lal should hand over the property to the then plaintiffs and the plaintiffs should maintain the charities. We, however, find that subsequently this compromise was not carried out and a further suit was brought by Badri Prasad and Lakhmi Chand on the.21 of April 1910 against Behari Lal for recovery of possession of the property of Narain Das. There was again a compromise on the 8 of February 1911. The property was divided between the parties 2/3 going to Badri Prasad and his brother and 1/3 to Behari Lai. It was also agreed "that the properties divided, between the parties should continue to be liable for the payment of certain specified debts and such other liabilities to which they might be subject. Mutation of names followed this compromise and parties were recorded as in possession of their respective shares under the compromise. Three years later, in 1914, Badri Prasad applied for perfect partition of his shar,e Behari Lal objected and he said that he was in possession of one-half of the property for the administration of charities and that it was the other half of the property that had been divided among the parties in the ratio of 2 to 1. It seems that, he was in possession as a lambardar. He contended that, in this view of the compromise, the applicant had not got a sufficiently large area to allow of a perfect partition being effected. The Deputy Collector conducting the partition held that the objection did not raise any question of title such as had not already been settled between the parties by a decree of a competent Court and he dismissed Behari Lal's objection. An appeal was filed by Behari Lal to the Court of the District Judge and to the High Court and the appeals were dismissed. The High Court in their judgment (at p. 175 of the printed record) dated the 12 of April 1917, made certain remarks which will be noticed later on. Three years after the High Court had decided the case, the suit, out of which this appeal has arisen, was instituted by three Hindus, being members of the Arya Samaj of Farrukhabad, with the permission of the Lagal Remembrancer claiming the administration of the property which they alleged had been endowed by Narain Das by his Will. 2. Several defences were separately, taken, by Behari Lal and by Badri Prasad and his brother. The suit has been decreed by the learned District Judge and he held that as to half the property of Narain Das, Badri Prasad and Lakhmi Chand should have it and they should disgorge 1/6th out of the 2/3 share taken by them and Behari Lal should give up his entire 1/3 share received by him under the compromise. The learned Judge also directed accounts to be taken. He also directed that such properties as had been acquired out of the property of Narain Das should also be given up by the defendants. Hence the appeals.

(3.) On behalf of Behari Lal, it has been urged that he should not be called upon to give up the entire 1/3 share taken by him, but he should give up only 1/6th share. He also contends that the suit for accounts was barred by three years rule of limitation. The point was also taken that in the circumstances of the case the appellant was not liable to be removed from the trusteeship. But this last mentioned point was not seriously pressed. On behalf of Badri Prasad and Lakhmi Chand, the argument was that the lower Court was right in calling upon Behari Lal to give up the entire property that had fallen into his share under the compromise decree, that they were mere trespassers and the suit was not maintainable against them and lastly the suit was barred by limitation against them. It was also urged that the liabilities of the several defendants should be separated.