- (1.) This First Appeal arises out of Original Suit No.180 of 1970, Smt. Shyama Devi Vs. Pt. Mahabir Prasad and others decided on 18.7.1973 by the court of first instance. The appeal was preferred in 1973 and it is being heard and decided after full four decades in the year 2013. A great travesty of justice and antitheses to the fundamental right of speedy justice.
(2.) One Smt. Hridaya Kunwar, the second wife of late Pt. Girdhari Lal of Banaras had considerable properties and income from the Vritt Yajmani. She had two step daughters Manukarni Devi and Hingo Devi and two daughters of her own Sumitra Devi @ Chikan and Sawanli Devi @ Baban. She executed a registered deed described as a Will on 24.2.1935 making arrangement for her properties and for collection and distribution of the income therefrom and from the Yajmani after her death.
(3.) The salient features of the aforesaid deed inter alia are as under: (i) Mahabir Prasad, the husband of her own elder daughter Sumitra Devi would act as her Wali; (ii) during her life time she would remain the complete owner of all her properties; (iii) on her death, one of the houses old No: 1/2 (New No: 33/72) Mohalla Gyanwapi would continue to be used by the tenants on the outer side, the first floor would be utilized for the stay of the travellers/pilgrims and the second floor would remain in occupation of the persons in whose name it has been shown; (iv) in respect of the rest of the properties, the Wali would exercise the right to let out, evict and realise rent from the tenants and for their repairs ; (v) from the income of the properties, Rs.7/- per month would be paid to one of her daughter Sawanli Devi @ Babban, Rs.15/- per month would be kept by the Wali as his remuneration and whatever remains thereafter would be divided into four equal shares and would be distributed amongst her four daughters or their heirs. (vi) the said arrangement would be carried out by Mahabir Prasad and thereafter by his decedents; (vii) no person would have any right to sell/transfer any property. (viii) her Yajmani would also be managed by Mahabir Prasad and thereafter by his male decedents generation to generation and in case there is no male decedent in his line then by Batuknath, the son of her second daughter and thereafter by his decedents and in case there is no male decedent in that line it will devolve upon the male decedents of the other daughters; (ix) from the income of Yajmani 5 annas would go to Mahabir Prasad, 2 Annas to Batuknath son of Sawanli Devi @ Baban and the remaining 9 Annas would be divided into 4 equal shares to be distributed amongs her four daughters or their decedents; (x) house No.D-5/19 Mohalla Tripura Bharvi would be used by Smt. Rajjo Devi, the daughter of Sawanli Devi @ Baban for her life time then by her son where-after it would be utilized for the benefit of all her daughters and their decedents; (xi) the accounts would be maintained and produced by Mahabir Prasad every six months and the shares of each one would be distributed; (xii) that no person will have any right to interfere with the arrangement made by her as aforesaid; and (xiii) that her debts, if any, would be settled by Mahabir Prasad from her properties or income from them and her funeral expenses etc. shall also be deducted from the income.;