BRIJ MOHAN Vs. KISHUN LAL

JUDGEMENT

(1.) This is a plaintiff's appeal and arises out of a suit for a declaration that the property in dispute is the personal property of the plaintiff. The property consists of certain buildings in the town of Allahabad and is detailed in the plaint in Schedules A and B. It originally belonged to Jagannath who died about the year 1865. The basis of the claim is that Mukandi Lal, the father of the appellant, was a foandhu, having heritable rights, of Jagannath, that Mukandi Lal succeeded to the property on the death of Jagannath's widow Mt. Lalta Bibi in November 1908 and that the appellant is entitled to the property by succession as an heir to his father along with his brother Janki Prasad who is defendant 5 in the suit. Several pleas were taken by the defendants, but it is not necessary to mention all of them. The Court below has found that the pedigree set up by the plaintiff is proved but that Mukandi Lal, the father of the Appellant, being five degrees removed from the common ancestor, Ghasi Ram, was not a bandhu with heritable rights and that therefore he never succeeded to Jagannath's estate. The Court below has also found on an examination of the evidence that the two deeds of will executed by Mt. Lalta Bibi in the years 1903 and 1907 by which she dedicated the property to an idol Shri Beharji, were executed by her with the express authority of her husband who had admittedly installed the deity in his house. It has also been found by the lower Court that the present suit is barred by the doctrine of res judicata be cause of the decision in Suit No. 85 of 1927. There is also a finding that the suit is barred by Section 42, Specific Belief Act. In consequence of the decision on these points the suit has been dismissed.

(2.) The point which has been argued before us is that the decision of the Court below that Mukandi Lal, the father of the plaintiff-appellant, was not a heritable bandhu of Jagannath is erroneous. The learned Counsel appearing for the appellant has very properly stated that if our decision on this point is against him, he would not be justified in taking up the time of this Court in arguing the other points. The pedigree set up by the plaintiff, appellant ia as given below:

(3.) The defendants did not admit this pedigree and contended that the evidence on which the plaintiff relied in proof of this pedigree was not admissible. The Court below has not accepted this contention arid has held that although the depositions in this case of the plaintiff-appellant, Brij Mohan, and his witness, Suraj Prasad, were inadmissible, certain previous statements of the plaintiff's father Mukandi Lal and one Gopal Das were admissible. In our opinion the Court below is not correct in its view that those statements are admissible. They were made in a suit filed on behalf of the Secretary of State for India claiming the property left by Jagannath on the ground that no heir of Jagannath was in existence and that the property had escheated to the Crown. The wills executed by Mt. Lalta Bibi creating the trust were also challenged. It would thus appear that the question as to whether Jagannath had left any heirs or not had arisen and the question of the alleged relationship of Mukandi Lal with Jagannath was in controversy. We therefore hold that the statement of Mukandi Lal relied upon is also inadmis. sible. The statement of Gopal Das has not been printed, nor has it been shown what special means of knowledge he had. Furthermore, it is admitted that the statement of Gopal Das also was recorded in the same litigation which we have mentioned above. Therefore Gopal Das's statement was also inadmissible. The Court below has not relied on any other evidence in proof of the pedigree, nor has the learned Counsel appearing for the plaintiff-appellant been able to refer to any other evidence. It may be pointed out that in her will dated 14 March 1907 Mt. Lalta Bibi makes this definite statement: There is no legal heir of me or of nay husband who should perform the religious rites and ceremonies.