Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 18
PETITIONER:
RAJ KUMAR MOHAN SINGH & ORS.
Vs.
RESPONDENT:
RAJ KUMAR PASUPATINATH SARAN SINGH & ORS.
DATE OF JUDGMENT:
19/04/1968
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
RAMASWAMI, V.
MITTER, G.K.
CITATION:
1969 AIR 135 1969 SCR (1) 1
ACT:
Oudh Estates Act 1869, ss. 13(1) and 22(7)-Testator making
will less than three months before death--Directing widow to
adopt son--Such son whether a person who would have
succeeded to the estate or interest therein within the
meaning of s. 13(1)--Widow gets title to estate under s.
22(7) in the absence of heirs under cls. (1) to (6)--subse-
quent adoption of son under husband’s authority does not
divert widow of her title--She does not lose title by
adverse possession if estate is managed by Court of Wards or
adopted son.
Transfer of Property Act, s. 43--Applies only when transfer
is for consideration.
HEADNOTE:
S who held a Talukdari Estate governed by the provisions of
the Oudh Estates Act 1 of 1869 died without legitimate
children. Eight days before his death on June 21, 1900 he
executed a will under which (a) his widow J was directed to
adopt a son as soon as possible, (b) the Court of Wards was
to manage the estate tiff a male successor could take over
the management, (c) J was during her life-time to be paid a
monthly allowance of one thousand rupees. In 1901 J, as
directed by the aforesaid will, adopted a son B. Till 1920
when B attained majority the Court of Wards managed the
estate and thereafter it was managed by B. In 1932, one year
before J’s death, B executed a deed of Trust in respect of
the estate properties principally for the benefit of his
creditors with the residue in favour of his son ’the Senior
Rajkumar in 1936 B revoked this deed. In 1946 he made a
will bequeathing the estate in favour of his second son ’the
Junior Rajkumar After his death in the same year there was
litigation between ’the Senior Rajkumar’ and the ’Junior
Rajkumar’ the former claiming the estate under the Trust
Deed of 1932 and the latter under (the Will of 1946. The
trial court held that the Trust Deed was validly executed
and that the will was operative in respect of she properties
not covered by the Trust. The High Court in appeal also
held the Trust Deed to be valid. The Junior Rajkumar
appealed to this Court. On the contentions of the parties
the following questions arose for consideration : (i)
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 18
Whether on a true interProtation of the will of S. interest
in the estate was intended to be conferred on B; (ii)
Whether the will of S, having been made less than three
months before his death it could operate in favour of B in
view of the provision in s. 13(1) of the Oudh Estates Act;
(iii) Whether in view of s. 22(7) of the Act B had a vested
interest in the estate during the life-time of J; (iv)
whether B’s adoption related back to the date of the death
of S.; (v) whether before the trust deed ’was executed by B
in 1932 he had acquired title to the estate by adverse
possession against J; (vi) whether S. 43 of the Transfer of
Property Act precluded the appellants from challenging the
Trust Deed.
HELD : (i) In the will of S. it was laid down that after his
death his wife should adopt a son and the Court of Wards
should manage the estate on behalf of the son so adopted.
This indicates by necessary
2
implication that the adopted son was on adoption intended to
be the beneficiary of the estate [7F]
(ii) The son adopted by the widow in pursuance of the
authority from the talukdar would under the provisions of
the Act, be deemed to he a person who would have succeeded
to the estate or interest therein within the meaning of s.
13(1) of the Act. Therefore the fact that S died within
there months of the date, when his will was executed and
attested did not operate under s. 13 of the Act as a bar to
the acquisition of an interest by B under the will of S.
[13F, 14C]
Maharani Indar Kunwar and Udit Narayan v. Maharani Jaipal
Kunwar. L.R. 15 I.A. 127, Bhaiya Rabidat Singh v. Maharani
Indar Kunwar & Ors. L.R. 16 I.A. 53 Abdul Latif v. Abadi
Begam, L.R. 61 I.A, 322, applied.
(iii) But under the will of S. the devise of the residue
in favour of B could become effective, only on his adoption
by J. Between the date of the death of S. and the adoption
of a son there was intestacy in respect of the talukdari
estate. As under Hindu law, so under the Oudh Estates Act
1869 the estate did not remain in abeyance. On the death of
the testator therefore the widow took the estate by virtue
of s. 22(7) of the Act. [4D-E]
(iv) Under sub-Cl.(7) of s. 22, in default of heirs
mentioned in cls.(1) to (6) of that section the widow takes
the estate for her life-time whatever be the personal law
governing her husband dying intestate. Her interest in the
estate was not liable to be defeated once it was vested in
her. She held the estate for the natural life-time : the
son adopted by her in pursuance of the authority of her
husband did not divest her of the estate. The adopted son
inherited the estate on her death under cl. (8) of s. 22 and
not before. The adopted son was undoubtedly an heir but he
has during the lifetime of the widow no interest in the
estate. [15F-16B]
Accordingly B was not competent in 1932 when J. was still
alive, to settle the estate for the benefit of his creditors
and the Trust Deed relied on by the respondents was
inoperative in regard to the talukdari estate. [18G; 21D]
Pandit Chandra Kishore Tewari & Ors. v. Deputy Commmissioner
of Lucknow in Charge Court of Wards Sissendi Estate and Anr.
L.R. 76 I.A 17, Babu Abdul Karim Khan v. Babu Hari Singh, 1
O.D. 264 and Bisheshwar Baksh Singh v. Jang Bahadur Singh,
A.I.R. (1930) Oudh 225, applied.
(v) The doctrine of Hindu law by which the adoption of -a
son by the widow by the authority of her husband relates
back to the death of the husband could have no application
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 18
to taluqdari estates as such a rule would be contrary to the
express provision in s. 22(7) which is applicable to all
communities. [17G-18A]
(vi) By the mere fact that she did not have management of
the estate but was only given a pension J. did not lose her
title to the property which devolved on her under s. 22(7).
B was living with her and it did not appear that she was
excluded from the estate or -any part thereof. Mere
erroneous admission of title of another person without
effective deprivation of possession did not result in
extinction of her title by adverse possession. [20A-B]
(vii) Section 43 of the Transfer of Property Act applies
only to cases where the transfer is for consideration and
not otherwise. The Trust Deed of 1932 was not executed for
consideration. The doctrine of feeding the estoppel
embodied in s. 43 relied on by the respondents had
therefore, no application to the case. [20F-21C]
3
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 380 of
1,965.
Appeal from the judgment and order dated May 23, 1963 of the
Allahabad High Court (Lucknow Bench) in First Civil Appeal
No. 70 of 1950.
C.B. Aarwala, I. A. Abbasi, S. Rahman and C. P. Lal, for the
appellant.
Jagdish Swaroop, A. K. Sen, R. N. Trivedi, S. S. Shukla and
Yogeshwar Prasad for respondents Nos. 1 and 3.
The Judgment of the Court was delivered bY
Shah, J. The following is the genealogical table explaining
how the parties are related :
Raja Jagpal Singh
Raja Surpal Singh d. 1900
(married Rani Jagannath Kuar)
Raja Bishwanath Saran Singh d. 1946
second wife Third wife
First wife Rani Fanindra Rajya Rani Sonamani
Rani Aditya Lakshmi Devi, D 5 Devi, D6
Binai Kumari
D4
Rajkumar Pasupatinath
Saran Singh, D2
Rajkumar Rajkumar
Mohan Singh Vijai Singh
D1 D3
Raja Jagpal Singh was granted the taluqdari of the Tiloi
Estate by the Government, and his name was entered as in
Lists 1, 2 and 5 prepared under s. 8 of the Oudh Estates Act
A of 1869. He died on September 15, 1875, and was succeeded
by his son Raja Surpal Singh as taluqdar of the estate.
Raja Surpal Singh had no legitimate children. On June 13,
190-0, Raja Surpal Singh executed a will disposing of his
property and conferring upon his wife Rani Jagannath Kaur
power to adopt a son. Raja Surpal Singh died on June 21,
1960. Rani Jagan-
4
nath Kuar adopted on February 21, 1901, a son who was known
as Raja Bishwanath Saran Singh hereinafter called ’Raja
Biswanath. After the death of Raja Surpal Singh, the Court
of Wards took over the management of the Tiloi Estate and
continued to manage it till March 30, 1920, when it was
released in favour of Raja Bishwanath. On August 29, 1932,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 18
Raja Bishwanath executed a deed of trust in respect of the
Tiloi Estate and other properties primarily for the benefit
of his creditors and the residue remaining after satisfying
his debts for the benefit of his son Rajkumar Pasupatinath
Saran Singh-hereinafter called "the Senior Rajkumar". Rani
Jagannath Kuar died on August 7, 1933. On November 21 1936,
Raja Bishwanath revoked the deed of trust On January 31
1942, the Court of Wards again assumed management of the
Tiloi Estate on behalf of Raja Bishwanath and continued to
manage the estate till it was released on the abolition of
the Estate under the U.P. Zamindari Abolition and Land
Reforms Act 1 of 1951. On August 2, 1946, Raja Bishwanath
executed a will bequeathing the Tiloi Estate and its
appurtenances to his son Rajkumar Mohan Singh-hereinafter
called "the Junior Rajkumar". Raja Bishwanath died on
November 8, 1946, and disputes arose soon thereafter between
the Senior Rajkumar and the Junior Rajkumar-the former
claiming the estate relying upon the deed of trust and the
latter relying upon the will of the late Raja.
The Court of Wards instituted in the Court of the District
Judge, Rai Bareilly, an inter-pleader suit on July 7, 1950,
impleading the three widows of Raja Bishwanath, his three
sons and the deity Sri Jagannath Bahari Ji for whose benefit
certain lands were settled under two deeds by Rani Jagannath
Kuar. The District Judge held that the deed of trust
executed by Raja Bishwanath was acted upon and was "not
invalid and unenforceable’ for any of the reasons set up by
the Junior Rajkumar, and that the Senior Rajkumar was not
precluded from claiming the estate relying on the trust
deed. He further held that the provisions of s. 22 of the
Oudh Estates Act, 1869, applied to the taluqdari estate held
by Raja Bishwanath, but not to his non-taluqdari property.
Since, however, a major portion of the property was the
subject matter of the trust under the deed executed in 1932,
and the rest had been bequeathed in favour of the Junior
Rajkumar, the question of succession by lineal primogeniture
did not arise in respect of any portion of the property
which was the subjectmatter of the suit. The Court further
held that Item 210 of Sch. A to the plaint was not. in
possession of the Court of Wards and consequently in that
respect an interpleader suit did not lie, and in respect of
Items 8 to 12 of Sch. B to the plaint, the three sons of
Raja Bishwanath had only a right of management as shebalts,
that the deed of trust constituted a valid gift and the
included in the deed of trust was subject to the obligations
created.
5
thereby, that Raja Bishwanath was fully competent to execute
the deed of trust, and that the will dated August 2, 1946,
executed by Raja Bishwanath in favour of the Junior Rajkumar
was operative in respect of Items 102 and 1 12 of Sch. A:
of the plaint, and also in respect of Items 4, 5, 6 & 7 of
Sch. B to the plaint and the other appurtenances of the
Tiloi Estate which were not included in the deed of trust
executed by Raja Bishwanath or in the deed of trust executed
by Rani Jagannath Kuar. The Court gave certain directions
in respect of the property settled under the deeds of trust
created by Rani Jagannath Kuar, but since no claim is raised
in respect of those properties, nothing need be said in that
behalf. Substantially as a result of the findings recorded
by the District Judge, the will set up by the Junior
Rajkumar and the deed of trust set up by the Senior Rajkumar
were both upheld’, and a decree was made in favour of the
Junior Rajkumar in respect of those properties which were
not covered by the deed of trust.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 18
Against that decree the Junior Rajkumar, his brother
Rajkumar Vijai Singh and their mother Rani Sonamani Devi
appealed. The Senior Rajkumar did not prefer an appeal
against that part of the decree which upheld the will of
Raja Bishwanath and the claim of the Junior Rajkumar.
During the pendency of the appeal, the Senior Rajkumar was
appointed receiver of the properties in dispute under an
order of the Court dated March 24, 1959, and he continued to
remain in posse on thereafter. On the abortion of the
Zamindari, the Court of Wards was struck off from the
record.
Before the High Court of Allahabad, two principal questions
fell to be determined, (1) whether the deed of trust dated
August 29, 1932, executed by Raja Bishwanath was valid and
operative so as to create an interest in favour of the
Senior Rajkumar; and (2) whether the deeds of trust executed
by Rani Jagannath Kuar on September 21, 1920 and May 15,
1933 were valid and operative. The High Court substantially
agreed with the Trial Court on both the questions. Against
that decree passed by the High Court, this appeal was filed
with certificate granted by the High Court by the Junior
Rajkumar, his younger brother-Rajkumar Vijai Singh-and his
mother-Rani Sonamani Devi.
Counsel for the appellants did not challenge the finding of
the High Court, about the validity and the operative
character of the deeds of trust executed by Rani Jagannath
Kuar. The only question canvassed by counsel for the
appellants related to the property covered by the deed of
trust executed by Raja Bishwanath We have heard counsel for
the appellants on two out of the several contentions raised
by him-(1) that on a true interpretation of the will of Raja
Surpal Singh, no interest in the estate was intended to be
conferred upon Raja Bishwanath; and (2) granting that it was
intended by the testator to bequeath the residuary estate in
6
favour of Raja Bishwanath the will was inoperative by virtue
of S. 13 of the Oudh Estates Act, 1869, and that in any
event Raja Bishwanath had under the will no vested interest
in the taluqdari estate during the life-time of Rani
Jagannath Kuar.
Being of the view that the appellants must succeed on the
second contention, we have not thought it necessary to
determine whether the title of the Senior Rajkumar suffered
from any other infirmity, viz. that the deed of trust was
not a permissible transaction under S. 11 of the Oudh
Estates Act 1869; that possession of the property was not
delivered to the trustees within six months of the date of
execution of the deed of trust as required by s.13(2) of the
Oudh Estates Act, and the trust failed for noncompliance
with the mandatory provisions of law in that regard; that
the provisions of the deed of trust were vague and
indefinite and on that account incapable of enforcement;
that the trust was lawfully revoked by Raja Bishwanath and
that the main purpose of the trust-satisfaction of the debts
of Raja Bishwanath-has since the-date of the deed of trust
been achieved by the operation of the U.P. Encumbered
Estates Act 25 of 1934, the U.P. Zamindari Abolition and
Land Reforms Act 1 of 1951 and the U.P. Debt Reduction Act
15 of 1953.
Raja Surpal Singh executed his will on June 13, 1900. The
preamble and the first four paragraphs of the will which are
material in this appeal may first be read:
"Let it be known to all concerned that I Raja
Surpal Singh Bahadur Taluqdar and proprietor
of Tiloi Estate do hereby declare my last
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 18
wishes and make the disposition of my property
as below and it will operate after my demise
unless and until I cancel these presents by
duly executed will.
1. As I have got no heirs competent to
manage the estate properly and independently,
I solicit the Government to take the estate
under the Court of Wards superintendence
unless and until there be some male successor
fit to manage the estate.
2. As I have got no issue begotten of my
wedded wife (Rani Jagannath Koer) I authorize
my said Rani to select a fit and promising boy
with the approval of the Deputy Commissioner
from the Rajkumar Thakurs of village Chilowli
or other village and adopt him as my son.
3. The Deputy Commissioner of the District
will very kindly press the said Rani to make
the adoption according to law as soon as
practicable after my demise and from the time
of adoption the Court of Wards
7
should hold the estate on. behalf of the said
adopted son.
4. My wife Rani Jagannath Koer will receive
a suitable maintenance of rupees one thousand
a month whether the estate be under the charge
of the Court of Wards or of my adopted son."
By paragraphs the testator directed that one Col.R.F. Angels
should be continued as special manager of the estate on the
same pay and privileges that he enjoyed at the date of the
will. By paragraphs provision was made for two illegitimate
children of the testator, and by paragraphs it was directed
that the personal servants and others who it was stated had
faithfully served the testator should be adequately
rewarded.
In favour of the son to be adopted, there is in the will no
express bequest. But we are unable to hold that the
testator by his will intended merely to devise specific
legacies and to provide for the management of the estate and
not to dispose of the residue. The preamble to the will
declares the intention of the testator to dispose of his
property as set out therein. By the first paragraph he
requested the Government to take the estate under the
superintendence of the Court of Wards until there was some
male successor fit to manage the estate, and by paragraph-2
he authorised his wife to adopt a son to him with the
approval of the Deputy Commissioner from amongst certain
classes. By paragraphs he recommended that the Deputy
Commissioner should persuade the Rani to make the adoption
according to law as soon as practicable after his demise,
and after the adoption the Court of Wards was to hold the
estate on behalf of the said adopted son. In our judgment,
the intention of the testator was that after his death Rani
Jagannath Kuar should adopt a son selected by her and that
his estate should then remain under the management of the
Court of Wards on behalf of the adopted son. This clearly
indicates that the adopted son was on adoption intended to
be the beneficiary of the estate. The will does not
expressly devise the estate in favour of the adopted son,
but the language clearly implies that intention. Till the
adoption was made, the estate was to remain under the
management of the Court of Wards and no beneficial owner was
designated. What the effect in law of that direction is,.
we will presently consider. But there is no doubt that the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 18
testator intended that the son adopted by Rani Jagannath
Kuar was to take the estate and the Court of Wards was to
hold the estate on behalf of the adopted son. We therefore
agree with the High Court that the testator intended to
confer an estate of inheritance upon the son to be
adopted by the Rani.
The finding that under the will of Raja Surpal Singh, the
adopted son was on adoption intended to take an estate of
inheri-
8
tance is however not sufficient to justify the decision that
Raja Bishwanath-the son adopted by Rani Jagannath Kuar-was
invested lawfully with interest in the taluqdari estate
which he could settle at the date of the deed of trust.
There are special rules governing inheritance and succession
to a taluqdari estate and testamentary dispositions made by
a taluqdar within three months before his death are valid
only if certain conditions are fulfilled and not otherwise.
Again, under the will, between the date of the death of the
testator and the date of adoption of a son by the Rani, the
beneficial interest in the residue was not devised in favour
of any person, and the estate remained in abeyance till the
Rani adopted a son. The legal effect of the will in the
light of the Oudh Estates Act and in particular of S. 22
remains also to be considered.
To appreciate the provisions of the Oudh Estates Act 1 of
1869, which have a bearing on the questions in dispute, it
is necessary in the first instance to refer to certain
peculiar features of the estates held by the Oudh Taluqdars.
Annexation of Oudh by the East India Company was effected on
February 13, 1856. In anticipation of the change of
Goverment, the GovernorGeneral addressed a letter to the
Resident on February 4, 1856, for guidance in the
administration of the province, and directed that settlement
of lands be made by the Government with the actual occupants
of the soil, that is, with the petty zamindars or
proprietors, and to exclude taluqdars who held the estates
in the Province of Oudh. A summary settlement with the
persons in occupation of the soil was commenced, but before
the summary settlement was completed, insurrection by the
Indian troops broke out at Lucknow on May 13, 1857, and the
territory of Oudh was up in arms against the foreign regime.
After the insurrection was quelled, the Government made a
change in its policy, and the Commissioner of Oudh
recommended to the Government of India that "talookas should
only be given to men who have actively aided us, or who,
having been inactive, now evince a true willingness to serve
us, and are possessed of influence sufficient to make their
support of real value". This policy recommended by the
Commissioner was accepted by the Government of India, and on
March 15, 1858, the Governor-General Lord Canning, issued
his proclamation divesting the landed proprietors (except
holders of five estates) in Oudh of all their proprietory
rights in the soil and vesting them in the British
Government. The effect of the proclamation was that all
lands within the province of Oudh, with the exception of
five estates, were at the disposal of the British Govern-
ment, and all rights of the entire body of proprietors of
lands covered by the said proclamation were extinguished,
and any future rights to be, claimed by any proprietors had
to be claimed under regrant from the Government. Under the
new scheme,
9
sanads were granted to the taluqdars and tables setting out
the names of taluqdars and the nature of their rights were
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 18
prepared After Lord Canning’s proclamation a second summary
settlement was started, by which a hierarchy of interests in
the lands analogous to the feudal system in England was
created.
The Oudh Estates Act 1 of 1869 was enacted in 1869 to deal
with the special kind of property called "estate", brought
into being in Oudh as a result of the Act. The long
preamble of the Act recited that "whereas, after the re-
occupation of Oudh by the British Government in the year
1858, the proprietary right in diverse estates in that
province was, under certain conditions, conferred by the
British Government upon certain Taluqdars and’ others; and
whereas doubts may arise as to the nature of the rights of
the said Taluqdars and others in such estates, and as to the
course of succession thereto, and whereas it is expedient to
prevent such doubts, and to regulate such course, and to
provide for such other matters connected therewith as are
hereinafter mentioned;", the Act was enacted. The Act made
provisions about the nature of the rights of the taluqdars
to the course of succession thereto and incidental matters.
It had the merit of being an enactment declaring the rights
of all the taluqdars qua their estates. and prescribed a
uniform course of succession irrespective of the personal
law which governed individual taluqdars.
Since we are primarily concerned to determine the rights of
the parties arising by virtue of a will executed in the year
1900, we propose not to refer to amendments made in the Act
after the year 1900. The expression ’transfer’ was defined
in the Act as meaning "an alienation inter vivos"; and
"will" was defined as meaning "the legal declaration of the
intentions of the testator with respect to his property
affected by this Act, which he desires to be carried into
effect after his death"; ’taluqdar’ was defined as meaning
"any person whose name is entered in the first of the lists
mentioned in section eight"; "estate" was defined as meaning
"the taluqa or immoveable property acquired or held by a
Taluqdar or grantee in the manner mentioned in section
three, section four or section five, or the immoveable
property conferred: by a special grant of the British
Government upon a grantee"-. and ’heir’ was defined as
meaning "a person who inherits property otherwise than as a
widow, under the special provisions of this Act",; and
’legatee’ was defined as meaning "a person to whom property
is bequeathed under the same provisions". By s. 3 the
rights of taluqdars were declared : every taluqdar with whom
a summary settlement of the Government revenue was made
between the first day of April 1858, and the tenth day of
October 1859. or to whom, before the passing of the Act and
subsequently to the first day of April 1858, a taluqdari
sanad had been granted,
10
was deemed to have thereby acquired a permanent, heritable
and transferable right in the estate comprising the villages
and lands named in the list attached to the agreement or
kabuliyat executed by, such taluqdar when such settlement
was made. By s. 8 the -Governor-General of India was
enjoined to prepare six lists-of ’which the following are
material:
"First.-A list of all persons who are to be
considered Talukdars within the meaning of
this Act.
Second.-A list of the Taluqdars whose estates
according to the custom of the family, on and
before the thirteenth day of February 1856,
ordinarily devolved upon a single heir;
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 18
Fifth.-A list of the Grantees to whom sanads
or grants may have been or may be given or
made by the British Government, up to the date
fixed for the closing ,of such list, declaring
that the succession to the estates comprised
therein shall thereafter be regulated by the
rule of primogeniture;"
By s.11 power was conferred upon every taluqdar and grantee
and every heir and legatee of a taluqdar and grantee to
transfer the whole or any portion of the estate or of his
right and interest therein during his lifetime, by sale,
exchange, mortgage, lease or gift and to bequeath by his
will to any person the whole or any portion of such estate,
right and interest, but by s. 13 certain restrictions were
imposed upon taluqdars as to the manner in which gifts and
devises could be made. It was provided, insofar as it is
material :
"No Taluqdar or Grantee and no heir or legatee
of a Taluqdar or Grantee shall have power to
give or bequeath hi-.; estate or any portion
thereof or any interest therein to any person
not being either-
(1) a person who, under the provisions of
this Act or under the ordinary law to which
persons of the donor or testator’s tribe and
religion are subject, would have succeeded to
such estate or to a portion thereof or to an
interest therein, if such Taluqdar or Grantee,
heir or legatee had died intestate, or
(2)..........................................
except by an instrument of gift or a will
executed and attested not less than three
months before the death ,of the donor or
testator, in manner herein provided in the
11
case of a gift or will, as the case may be and
registered within one month from the date of
its execution."
By S. 14, insofar as it is material, it was provided :
"If any Taluqdar or Grantee . . . . or his
heir or legatee, shall hereafter transfer or
bequeath, the whole or any portion of his
estate to another Taluqdar or Grantee, or
to. .. . . . . . a person who would have
succeeded according to the provisions of this
Act to the estate or to a portion thereof if
the transferor or testator had died without
having made the transfer and intestate,, the
transferee or legatee and his heirs and
legatees shall have the same rights and powers
in regard to the property to which he or they
may have become entitled under or by virtue of
such transfer or bequest, and shall hold the
same subject to the same conditions and to the
same rules of succession as the transferor or
testator"
Chapter VII dealt with intestate succession, and S. 22, set
out special rules of succession to the estates held by
Taluqdars and Grantees dying intestate. It provided :
"If any Taluqdar or Grantee, whose name shall
be inserted in the second, third or fifth of
the lists mentioned in section eight, or his
heir or legatee, shall die intestate as to his
estate, such estate shall descend is follows,
viz: --
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 18
"(1)To the eldest son of such Taluqdar or
Grantee, heir or legatee, and his male lineal
descendants, subject to the same conditions
and in the same manner as the estate was held
by the deceased;
(2).-Or if such eldest son of such Taluqdar or
Grantee, heir or legatee, shall have died in
his lifetime, leaving male lineal descendants,
then to the eldest and every other son of such
eldest son successively, according to their
respective seniorities, and their respective
male lineal descendants, subject as aforesaid;
(3).-Or if such eldest son of such Taluqdar or
Grantee, heir or legatee, shall have died in
his father’s lifetime without leaving male
lineal descendants, then to the second and
every other son of the said Taluqdar or
Grantee, heir or legatee, successively,
according to their respective seniorities, and
their respective male lineal descendants,
subject as aforesaid;
(4).-Or in default of such -,on or
descendants, then to such son (if any) of a
daughter of such Taluqdar or
12
Grantee, heir or legatee, as has been treated
by him in all respects as his own son, and to
the male lineal descendants of such son,
subject as aforesaid;
(5).-Or in default of such son or descendants,
then to such person as the said Taluqdar or
Grantee heir or legatee, shall have adopted by
a writing executed and attested in manner
required in case of a will and registered,
subject as aforesaid;
(6).-Or in default of such adopted son, then
to the eldest and every other brother of such
Taluqdar or grantee, heir or legatee,
successively, according to their respective
seniorities, and their respective male lineal
descendants, subject as aforesaid;
(7).-Or in default of any such brother then to
the widow of the deceased Taluqdar, Grantee,
heir or legatee; or, if there be more widows
than one, to the widow first married to such
Taluqdar or Grantee, heir or legatee, for her
lifetime only;
(8).-And upon the death of such widow, then to
such son as the said widow shall, with the
consent in writing of her deceased husband,
have adopted by a writing executed and
attested in manner required in case of a will
and registered, subject as aforesaid;
(9).-Or on the death of such first married
widow and in default of a son adopted by her
with such consent and in such manner as
aforesaid, then to the other widow, if any, of
such Taluqdar or Grantee, heir or legatee,
next in order of marriage, for her life, and
on the death of such other widow, to a son
adopted by her with such "consent and in such
manner as aforesaid; or in default of such
adopted son, then to the other surviving
widows according to their respective
seniorities as widows for their respective
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 18
lives, and on their respective deaths to the
sons so adopted by them respectively and to
the male lineal descendants of such sons
respectively, subject as aforesaid;
(10) Or in default of any such widow or of
any son so adopted by her, or of any such
descendants then to the male lineal
descendants, not being najib-ul-tarfain of
such Taluqdar or Grantee, heir or legatee,
successively, according to their respective
seniorities and their respective maile lineal
descendants whether najib-ultarfain or not;
13
(11) Or in default of any such descendant then
to such persons as would have been entitled to
succeed to the estate under the ordinary law
to which persons of the religion and tribe of
such Taluqdar or Grantee, heir or legatee’ are
subject.
Nothing contained in the former part of this
section shall be construed to limit the power
of alienation conferred by section eleven."
Raja Surpal Singh died within three months of the date of
his will: the will was made on June 13, 1900, and presented
for registration and was duly registered on June 15, 1900.
Raja Surpal Since died on June 21, 1900. If the will be
regarded as made in favour of a person who would not, under
the provisions of the Act or the ordinary law to which the
testator was subject, have succeeded to the estate, the will
was, by virtue of s. 13(1) inoperative. We have already
observed that under the will there was an intention to grant
the residue of the estate to the adopted son, but till
adoption the devise of the estate was in abeyance. The
adopted son was still a person who would have, under the
provisions of the Act, succeeded to the estate or to an
interest therein. It may be observed that the legacies by
Raja Surpal Singh in favour of illegitimate children and
strangers to the family could not apparently come out of the
taluqdari estate, but was are in the absence of necessary
parties not called upon to express any final opinion on that
question. A son adopted by the widow with the consent in
writing of the taluqdar would be entitled by cl. (8) of s.
22 to take the estate upon the termination of the estate of
the widow under cl. (7). But the son adopted by the widow
in pursuance of the authority from the taluqdar would, under
the provisions of the Act, be deemed to be a person who
would have succeeded to the estate or interest therein
within the meaning of s. 13(1). On that part of the case
there is abundant authority.
In Maharani Indar Kunwar and Udit Narayan v. Maharani Jaipal
Kunwar(1) it was held by the Judicial Committee that a
junior widow who under S. 22(9), on the death of the senior
widow and in default of a son adopted by her with such
consent, is entitled to take the estate of a taluqdar, holds
an interest in the estate of a taluqdar within -the meaning
of S. 13 (1 ) even though her right to succeed is subject to
a life estate in the taluqdari property expectant on the
determination of the life estate of the senior widow
therein, and is subject to be defeated by an adoption made
by the senior widow. In Bhaiya Rabidat Singh v. Maharani
Indar Kunwar and others(2), which is an offshoot of the,
ease
(2) L.R. 16 I.A. 53.
(1) L. R. 15 1. A. 127.
14
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 18
decided in Maharani Indar Kunwar’s case(1), it was held by
the Judicial Committee that the word ’intestate’ in sub-s.
(1) of S. 13 means intestate as to estate. An adopted son
is a person who would have succeeded to an intestate within
the meaning of that section, although the authority to adopt
him was conferred by the will of the taluqdar. Similarly in
Abdul Latif v. Abadi Begam(2) it was held by the Judicial
Committee that the junior widow of a taluqdar in List 2 was
a person who would have succeeded to an interest in the
estate upon intestacy, and accordingly S. 13 did not
preclude the taluqdar from making a bequest to her by a will
executed within three months of his death.
Therefore the fact that Raja Surpal Singh died within three
months of the date his will was executed and attested, does
not operate under s. 13 of the Act as a bar to the
acquisition of an interest by Raja Bishwanath under the will
of Raja Surpal Singh.
But under the will the devise of the residue in favour of
Raja Bishwanath could become effective only on his adoption
by Rani Jagannath Kuar. Between the date of his death and
the adoption of a son there was intestacy in respect of the
taluqdari estate which was not lawfully disposed of. As
under the Hindu Law, so under the provisions of the Oudh
Estates Act 1 of 1869, the estate does not remain in
abeyance. On the death of the testator therefore the widow
took the estate by virtue of S. 22(7), and that estate must
enure for the lifetime of The widow, for the Act does not
contemplate that the statutory estate which the widow takes
under s.22(7) on intestacy may be restricted. By express
provision of the Act, the widow is not an heir : when she
takes the estate of a taluqdar on intestacy, she does not
inherit the estate as an heir, but she takes it by virtue of
the statutory right conferred upon her. The source of her
right is in S. 22(7) and its extent and incidents are
delimited thereby. She holds the estate as an owner, and
she is entitled to enjoy it during her lifetime. She cannot
alienate or encumber the estate or any part thereof beyond
her lifetime. But so long as she is alive, no one has any
vested interest in the estate. The person or heir who would
take the estate will be determined on the termination of her
natural span of life. If she adopts a son, pursuant to
authority given in writing by her husband, and the son
survives her, the estate will devolve upon the adopted son.
If she is not authorised to adopt, or being authorised does
not adopt, or even if she has lawfully adopted and the
adopted son dies leaving no male lineal descendants, the
estate will devolve upon the next junior widow, if any, for
her lifetime, and on the death of such other widow to a son
(1) L. R. 15 I.A. 127.
(2) L.R. 61 I.A. 322
15
adopted by her with the consent in writing of her husband
and in default of an adopted son to the next surviving
widow, according to their seniorities as widows for their
respective lives, and "on their respective deaths to the
sons so adopted by them respectively, and to the male lineal
descendants of such sons respectively."
The Oudh Estates Act, as observed by the Judicial Committee,
is a Special Act, which is self-contained and complete in
regard to the matters contained therein : Pandit Chandra
Kishore Tewari and others v. Deputy Commissioner of Lucknow
in Charge Court of Wards Sissendi Estate and another(1).
The rules relating to Inheritance and succession contained
therein follow no definite pattern consistent with any
system of law-Hindu, Muhamadan or English. As remarked by
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 18
the Judicial Commissioner of Oudh in Babu Abdul Karim Khan
v. Babu Hari Singh (2 ) s. 22 of Act 1 of 1869 "follows
neither the Hindu nor the Muhamadan nor the English Law, but
borrowing something from each of them, lays down a peculiar
line of succession applicable to the estate of those
taluqdars and grantees dying intestate whose names are to be
found in the second, third or fifth of the lists prepared
under s. 8 of the Act". The taluqdars of Oudh comprise
among them. Hindus, Mussalmans, Christians and Sikhs, and
s. 22 was enacted to lay down a complete scheme of
succession applicable to all taluqdars irrespective of the
religious faith of the taluqdar. Under S. 22(7) in default
of heirs mentioned in cls. (1) to (6) the property of a
taluqdar devolves upon the widow first married to such
taluqdar for her lifetime only. By the use of ’the
expression "for her lifetime only" it is clearly intended
that though the widow has full enjoyment during her
lifetime, she must leave the estate unimpaired for the
successor : Bisheshar Baksh Singh v. Jang Bahadur Singh(3) .
The position assigned to the widow of a taluqdar-be he a
Hindu, Muhamadan, Christian or Sikh-in the scheme of
succession is peculiar. In default of heirs mentioned in
cls. (1) to (6) the widow takes the estate, but for her
lifetime only, whatever may be the personal law governing
her husband dying intestate. In determining the nature of
her estate and the powers she may exercise, analogies drawn
from the personal law of the taluqdar would be misleading.
There is no provision in the Act which forfeits the interest
which the widow of a taluqdar takes on the death of her
husband in default of heirs mentioned in cls. (1) to (6) of
S. 22. Her interest in the estate is not liable to be
defeated once it is vested in her. She holds the estate for
her natural lifetime : the son adopted by her in pursuance
of the
(1) L. R.76 I.A (2) 1 O.D. 264.
(3) A.I.R. (1930) Oudh 225, 230.
16
authority of her husband, does not divest her of the estate.
The adopted son inherits the estate on her death under cl.
(8) of s. 22 and not before.The adopted son is undoubtedly
an ’heir’ but he has during the lifetime of the widow no
interest in the estate. He merely takes precedence over the
junior widow who takes the estate by virtue of cl. (9). The
widow’s interest in the property entires only for her
lifetime, but she is the owner of the estate and the estate
is fully vested in her, and the adopted son has during the
lifetime of the widow no interest in the estate which he may
transfer.
The learned Judges of the High Court were of the view that
adoption of a son by a widow of a taluqdar relates back to
the date of the adoptive father’s death, and in arriving at
that conclusion the learned Judges made a somewhat intensive
research into the different systems of law which permit
affiliation of a -,on. "Adoption" in its dictionary meaning
is the act by which relation of paternity and affiliation
are recognised as legally existing between persons not so
related by nature. The effect of adoption was to cast the
succession on the adopted, in case the adoptive father died
intestate, and created a relation of paternity and affi-
liation not before recognized as legally existing, and the
change of name was more an incident than the object of
adoption. Adoption was not known to the English Law until
the Adoption of Children Act, 1926. Under that Act the High
Court and certain other courts were (riven power to make
adoption orders in respect of infants upon the application
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 18
of a single person or married couple,. subject to certain
restrictions as to age and sex of the applicant, and to the
consent of the infant’s parent or guardian. The French Law
admitted of adoption, and the adopted child succeeded to the
inheritance of the adopter : Code Nepoleon, art. 350.
Adoption was also known to the Spanish Law and the person
adopted succeeded as heir to the person who adopted him :
Title 16, 4th Partidas. It was recognised in Greece, but in
the interests of the next of kin whose rights were affected
: adoption could be made at a fixed time the festival of
Thargelia. In Rome the system was in vogue long before the
time of Justinian, but the ceremonies to accomplish the
result were cumbered with much formality. Justinian reduced
the statement to a code which simplified the proceeding.
But none of these systems of law gave ’retrospective
operation to an adoption made by a widow to the date of her
husband’s death. Adoptions under the diverse systems
brought into being affiliation and a fictional paternity
from the date of adoption, but they did not envisage the
refinements which the Hindu law of adoption had reached.
Under the Shastric Hindu Law adoption had the effect of
transferring the adopted boy from his natural family into
the adoptive family : it severed
17
all his ties with the family in which he was born, and
invested him with the same rights and privileges, in the
family of the adopter as the legitimate son, subject to
certain specific exceptions. Adoption of a son by a widow
related back to the date on which the adoptive father died
and the adopted son by a fiction of law was to be deemed to
have been in existence, as the son of the adoptive father at
the time of the latter’s death.
But the adoption contemplated to be made by a taluqdar or by
his widow with his consent under the Oudh Estates Act 1 of
1869 has not the incidents and consequences of adoption
under the Hindu Law. The taluqdars belonged to the Hindu,
Muhamadan, Christian and Sikh communities. The personal
laws governing the Hindus and Sikhs recognise adoptions and
the creation of rights in the adopted sons. Amongst the
Muhamadans and Christians no adoptions are recognised by
their personal laws. Under the Oudh Estates Act it was open
to a taluqdar, whatever his persuasion, to authorise by
writing his wife to adopt a son. To such an adoption the
personal law had no application. In matters not expressly
covered by the provisions of the Oudh Estates Act, the
personal law of the taluqdar may be applicable, but the
right of adoption not being uniformly exercisable by the
taluqdars according to their personal laws, the peculiar
incidents of Hindu adoptions have no application. Under the
Hindu Law, adoption has primarily to be viewed in the
context of spiritual rather than temporal considerations,
and the devolution of property is only of secondary
importance. The spiritual considerations are out -of tune
in considering the status of a son adopted by a Muslim or by
a Christian. Under the Hindu Law it is not disputed that
the adoption made by a Hindu widow relates back to the date
of the death of the adoptive father, but in the absence of
any express provision in the Act, it would be impossible to
attribute to the adoption made by a widow of a taluqdar
pursuant to the authority given by her husband the incidents
of an adoption under the Hindu Law. It is a necessary
concommitant of the doctrine of relation back, that the
adopted son takes the estate of his father as if he were in
existence at the date of his death. Any attempt to give to
the adopted son an interest or right which is deemed to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 18
commence from the date of the adoptive father’s death so as
to divest the estate which is already vested in the widow is
not only inconsistent with the personal law of taluqdar who
is not a Hindu or a Sikh, but come-, in conflict with
express provisions of the Act. The Act provides that,a son
adopted by a widow in pursuance of the instructions given by
her husband takes the property on her death and not before.
If the rule suggested were applicable, it would operate to
deprive ’,lie widow of her right to the property vested in
her on the death of her
18
husband and to which she is declared by law to be entitled
for her lifetime. That would be plainly contrary to the
terms of s. 22(7). We are unable, therefore, to agree with
the High Court that the doctrine of relation back is
applicable to an adoption made by the widow of a taluqdar
governed by the Oudh Estates Act, 1869.
Therefore, in our view, during the lifetime of Rani
Jagannath Kuar, Raja Bishwanath had no interest and his
interest in the taluqdari estate arose on the death of Rani
Jagannath Kuar and’ not before. We may in this connection
refer to the judgment of the Judicial Committee in Harnath
Kuar v. Indar Bahadur Singh(1). In that case a Hindu while
he was next in the order of succession after the death of
the widow of a taluqdar of an Oudh Estate in List II of Act
1 of 1869 obtained a decree declaring that a will, which the
widows of the last holder alleged authorised them to adopt,
was invalid, and that he was entitled to the estate upon the
death of the last surviving widow. The claimant succeeded
to the estate on the death of the last widow of the
taluqdar. In order to finance litigation which he had
undertaken, the claimant had, in consideration of a loan for
Rs. 25,000/-, purported to sell half the estate to a
stranger, and he had agreed to put the vendee in possession
of the property. After the death of the last surviving
widow of a taluqdar the representative of the vendee sued
the vendor for possession of the estate sold to the vendee.
It was held that there was no effective transfer of the
villages, since the vendor had only an expectancy, and the
decree did not create any greater interest in him. It was,
it is true, not a case of an adopted son, but of a
reversioner. But the case does establish that so long as
the widow was alive,, the estate was fully vested in her,
and the heir who would ultimately take the estate under the
rule of succession on intestacy had during the lifetime of
the widow no interest in the estate, and he could not during
the lifetime of the widow transfer the estate or any part
thereof to another person.
Raja Bishwanath was, though, not precluded by virtue of S.
13 from setting up the will, was still not entitled to a
present vested interest during the lifetime of Rani
Jagannath Kuar. He was accordingly, during the lifetime of
Rani Jagannath Kuar, not competent to settle the estate for
the benefit of his creditors.
Counsel for the Senior Rajkumar contended that in any event
the claim of Rani Jagannath Kuar was extinguished before the
deed of trust was executed, and Raja Bishwanath had acquired
title thereto by adverse possession. Counsel contended that
the
(1) L.R. 50 I.A. 69.
19
estate was, at all material times since 1901, held by the
Court of Wards for and on behalf of the adopted son, and not
on behalf of Rani Jagannath Kuar. Reliance in support of
the plea of adverse possession was placed upon the sanction
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 18
given by the Board of Revenue by letter dated February 22,
1901, to the adoption by Rani Jagannath Kuar; sanction by
the Government of India by letter dated April 3, 1901 to the
assumption of superintendence of the Tiloi Estate on behalf
of the adopted son and clarifying that the Rani had no
interest left in the estate thereof except that of
maintenance holder; letter of the Board of Revenue to the
Commissioner directing that the necessary notification be
published in the Government Gazette, and that steps be taken
to have the name of Raja Bishwanath mutated in the revenue
record; letter dated June 15, 1901 by the Deputy
Commissioner to the Commissioner that the intention of the
will was to make the adopted son, and not the Rani, the
successor of Raja Surpal Singh; the letter of the Board of
Revenue that the Rani should be required to execute a deed
acknowledging that she had adopted the child in pursuance of
the will of her late husband; correspondence between Rani
Jagannath Kuar and the Deputy Commissioner regarding the
adequacy of maintenance awarded to her and the offer by the
Board of Revenue to the Rani to assign sixteen villages
formerly held by Rani Harbans Kuar and acceptance thereof;
letter written by the Deputy Commissioner dated January 10,
1920 in anticipation of the approaching date of majority of
Raja Bishwanath recommending that the Board be moved to
release the estate with effect from March 29, 1920; letter
dated April 3, 1920, informing the Commissioner that the
Tiloi Estate had been released by the Court of Wards with
effect from March 30, 1920; and upon the fact that
thereafter Raja Bishwanath remained in possession of the
estate and exercised all rights of proprietorship in respect
of it until August 29, 1932, when he executed the deed of
trust. It is true that between the years 1901 when Raja
Bishwanath was adopted and August 29, 1932, the date of the
deed of trust, the estate was held either by him or on his
behalf. But no contention was raised in the Trial Court
that the interest which Rani Jagannath Kuar held in the
estate was extinguished by adverse possession and during the
lifetime of Rani Jagannath Kuar, Raja Bishwanath had
acquired title to the estate. The High Court declined to
allow the plea that the title of the Rani was extinguished
by adverse possession to be raised before them on the ground
that it Was not raised in the pleadings, and was not urged
at any stage of the trial, and since the question of adverse
possession was a mixed question of law and fact they
declined to allow it to be agitated for the first time
before them. In our view, the High Court was right in
declining to allow that question to
20
be raised. An issue of adverse possession raises mixed
questions of law and fact : it may be decided effectively
after the relevant facts are proved. Again, even though
Rani Jagannath Kuar was given a mere maintenance, the minor
Raja was living with her and it does not appear that she was
excluded from the estate or any part thereof. Mere
erroneous admission of title of another person without
effective deprivation of possession would not result in
extinction of title by adverse possession.
In the alternative, counsel for the Senior Rajkumar
contended that those claiming under the will of Raja
Bishwanath were estopped by the equitable doctrine embodied
in s. 43 of the Transfer of Property Act. It was urged that
even if Raja Bishwanath had no title at the date when he
purported to transfer the property to the trustees for
purposes mentioned therein, when he acquired title on the
death of Rani Jagannath Kuar, the Raja and those claimed
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 18
under him were estopped from claiming that at the date of
the transfer, lie had no temple. Section 43 of the Transfer
oil Property Act which incorporates the doctrine of feeding
the grant by estoppel reads
"Where a person fraudulently or erroneously
represents that he is authorised to transfer
certain immoveable property and professes to
transfer such property for consideration, such
transfer shall, at the option of the
transferee, operate on any interest which the
transfer or may acquire in such property at
any time during which the contract of transfer
subsists.
Granting that Raja Bishwanath erroneously represented that
he was authorised to transfer the estate sought to be
settled by the deed of trust, the doctrine incorporated in
s. 43 of the Transfer of Property Act may apply if the
transfer is for consideration and not otherwise. In the
present case, for effecting a settlement there was no
consideration on the part of the trustees under the deed of
settlement. Counsel for the Senior Rajkumar contended that
by the deed of trust the trustees had undertaken to carry
out various’ duties, and by so undertaking, consideration
for the transfer moved from them. We are unable to hold
that by agreeing to carry out the obligations imposed upon
them, the transfer may be deemed to be one for
consideration. Under the deed of trust, diverse powers ’ire
conferred upon the trustees : to make rules and amend them
from time to time for continuing and running the trust
administration, to appoint subcommittees for some special
purpose or management, to appoint from amongst them a
Chairman, Secretary, ’Cashier and Legal Adviser. to pay off
the debts due by the settlor
21
and to exercise all the proprietory rights relating to the
mortgage, sale, gift and perpetual lease etc. in respect of
the said property. By undertaking these duties the trustees
rendered no consideration and the transfer cannot be said to
be one for consideration. It was also said by counsel for
the Senior Rajkumar that in any event, two of the trustees
were creditors of the settlor, and since they had undertaken
to administer the trust, the transfer must be regarded as
one for consideration. But by the deed of settlement the
debts due to the creditors were not satisfied. Two of the
trustees were, it is true, creditors of the settlor: those
two trustees held a dual capacity-they were to administer
the trust and also to receive payment in execution of the
deed of trust. But on that account it cannot be said that
the amounts due to them from the settlor were satisfied. We
agree with the High Court that the deed of trust was not
executed for consideration and, therefore, the principle of
s. 43 of the Transfer of Property Act had no application.
The appeal must therefore be allowed and the decree passed
by the High Court modified. It will be declared that the
deed of trust executed by Raja Bishwanath on August 29,
1932, did not operate to settle any property being part of
the taluqdari estate and governed by the Oudh Estate, Act 1
of 1869, for the purposes specified therein. The direction
in the decree of the High Court that. In respect of the
properties mentioned in the trust deed"--"Ext. E-7 dated
August 29, 1932, made by Raja Bishwanath Saran Singh, the
receiver should hand over possession of the said properties
to Rani Fanindra Rajya Lakshmi Devi, who is the life trustee
under the said deed of trust and entitled to manage the same
herself or along with any other trustees that might be ap-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 18
pointed in respect of the said trust", shall be deleted, and
be substituted by the direction that the receiver shall hand
over the properties mentioned in Ext. E-7 to Rajkumar Mohan
Singh.
In the circumstances of the case, we are of the view that
there shall be no order as to costs of this appeal in this
Court and in the High Court, except as to the costs of the
deity Shree Jagannath Bahari Ji. The order of the High
Court as to costs of the deity shall be maintained and the
costs of the deity in this Court will be paid out of the
Estate.
G.C. Appeal allowed and decree modified.
22