JOTI LAL SHAH Vs. BENI MADHO PRASAD SINGH

JUDGEMENT

(1.) This is the defendants appeal. It arises out of an action by the plaintiff- respondents who being already in possession of 8 annas interest in a property known as the Amnour estate, claimed the remaining 8 annas from the defendants. Plaintiff 1 is the son of Tejpratap Singh. The contesting defendants 2 to 5 are the transferees in respect of certain mauzas and mortgagees in respect of others from Tinkauri, defendant 1. The relief claimed in the plaint is that it be adjudged by the Court that properties in dispute by virtue of the family arrangement mentioned ... belong to the plaintiff, and defendant has no right or title or subsisting right or title to any portion of the estate,

(2.) and there was also a claim for possession. One Krishna Bahadur Singh was the last male holder and proprietor of the estate apart from the parties to this action. He died on 17 October 1898, leaving him surviving his widow Bahuria Devapati Kuer only, there being nc issue cf the marriage. After Krishna Bahadur Singh's death Devapati Kuer went into possession of the estate. It is not disputed that on her death Tejpratap Singh, the father of the, plaintiff, and Tinkauri Singh, defendant 1, became entitled to the estate to the extent of 8 annas each. The claim put forward by the plaintiff is (without going into details at the moment) that the defendant agreed, in consideration of a payment to him by Tejpratap Singh of the sum of Rs. 2,400 per annum, to make no claim to the estate on the death of the widow. It will be necessary to consider later, in some detail, the actual terms of the agreement in so far as they have been proved in this case. The agreement is alleged to have been made in the following circumstances. In the first place from the genealogical table attached to the plaint (which is admitted by the defendants) it will be seen that the common ancestor of Tejpratap and Tinkauri was one Dalip Singh. By the second wife of Dalip Singh there were four sons. Tinkauri is the great-grandson of the second of these sons Debidut Singh, and Tejpratap is the great-grandson of the fourth of these sons, Kashidut Singh.

(3.) Krishna Bahadur Singh having died in October 1898 as already stated, in January 1899 his widow Bahuria Devapati Kuer propounded a will under which she was to have an absolute estate in the property in dispute. Ultimately this will was found to be a forgery. Another will was propounded by one Motiraj Kuer as guardian of her son HarmadhoPrasad Singh. Harmadho it may be stated descended from the youngest of the four sons of Dalip Singh to whom I have referred, and was the nephew of Tejpratap Singh. The petition of Motiraj Kuer was dated 6 January 1899. To the petition of Bahuria Devapati Kuer, five persons filed caveats: Tejpratap Singh, Tinkauri Singh, Mt. Motiraj Kuer, Raghubar Singh and Dundbahadur Singh. The case of the plaintiff is that his father Tejpratap was comparatively well off whereas Tinkauri was a schoolmaster in receipt of a very small salary, and being poor was unable or unwilling to jeopardize such property as he possessed by fighting the litigation in connexion with the will, and therefore made the agreement alleged. It is said by the plaintiff as an explanation of the appearance of Tinkauri's name in many of the proceedings in the litigation following upon the death of Krishna Bahadur, that the agreement between the parties was that Tinkauri should lend his name, although taking no active part in the proceedings. Exactly what were the terms of the agreement relied upon by the plaintiff as the basis of this action it is difficult to state. It is set out in para. 3 and again referred to in para. 9 of the plaint. The substance is that in the circumstances to which I have referred Tinkauri was not? to spend any money on the litigation but the expenses were to be borne entirely by Tejpratap; that Tejpratap would protect Tinkauri in Court in proceedings which the lady propounding the will might take against him; that Tinkauri would be reimbursed if his properties were in any way affected on account of the litigation; but that the fruits of the litigation with the widow would go entirely to Tejpratap Singh. It was agreed that if the litigation turned out successfully the monetary allowance to be made to Tinkauri would be Rs. 2,400 per annum. The reference to the agreement in para. 9 is that Tinkauri would have nothing to do with the expenses of the litigation and that there was a corresponding agreement that he should have no interest in the estate other than the allowance referred to. This agreement is described by the plaintiff, as we have seen in the relief portion of his plaint, as a family arrangement.