JUDGMENT
Grimwood Mears, C.J.
1. On the 5th of June, 1915, two brothers, by name Baldeo Sahai and Lakshmi Chand, Bohra Brahmans, were the owners in possession of the whole joint family property. Each had a wife, each had daughters, neither had a son. Baldeo Sahai was ill, and on the 5th of June, 1915, the two brothers executed a document, on which this appeal is based. If on its true construction it is valid by Hindu law, either as a will or as a family settlement, then it is agreed that the claim of Lakshmi Chand, brought as it was against the widow of Baldeo Sahai, must fail.
2. In the lower court Lakshmi Chand contended that the document had no legal validity, because on the death of Baldeo Sahai, (which occurred on the 10th of June, 1915,) he, Lakshmi Chand, became thereby the owner of the entire property. Musammat Anandi resisted the claim on the ground that she was in possession of the property in suit by virtue of the document of the 5th of June, 1915. On her behalf it is said that the document, whether legal as a will or not, could not be impeached because it had been executed by Lakshmi Chand to avert a partition upon which Baldeo Sahai had determined a few months previously; and some evidence of a rather shadowy character was given in support of this suggestion. A pleader’s clerk testified to procuring the khewats of upwards of 30 villages for the purpose of filing them with the application for partition. Lakshmi Chand agrees that those khewats were obtained, and alleges that the reason was not because of any intended partition but because other zamindars had got like documents under the apprehension that cither as the direct or indirect result of the war the buildings and records might be destroyed. We have remarked upon the absence of the evidence of Mr. Tirbeni Sahai, the pleader, who must certainly have known about the matter, and as he has not been called we are inclined to look with some suspicion on the bare statement of his clerk as to the object with which the khewats were obtained. We are therefore not prepared to bold that there was a bargain between the brothers that if Baldeo Sahai would not proceed with the partition, Lakshmi Chand would execute a document in the terms of the one before us.
3. Counsel for the respondent has urged that the document in question is a joint will and that the brothers were competent to make it. It has also been put forward that each brother was apprehensive as to the financial future of his wife in the event of his predeceasing her, and that each wished to secure for his wife (in the event of her becoming a widow) a more certain and generous provision than she would have as the ordinary widow of a deceased member of a joint Hindu family. To secure that object, each gave up his expectancy of outliving the other, with its consequential financial benefit, in consideration of the assured position which the widow of either would obtain under the document. We are of opinion that the respondent is right on both these contentions.
4. The document sets out that Baldeo Sahai and Lakshmi Chand are full brothers and members of a joint Hindu family, that they have no male issue but each has a wife and female issue, and they expressly state that this document is being executed in order to avoid future disputes, and they then proceed to make the following “declaration which shall be binding on. ourselves and our representatives, that in the event of one party dying without any male issue, the name of his widow shall be entered in the public papers, that the party remaining alive shall have no objection to the same, that if the surviving party has male issue, in that case, after the death of the widow of the deceased party, the son or the sons of the other party shall be the owner or owners of the entire estate, that the daughters or their sons shall have no right as against the son or sons of the other party, and that the widow of the deceased party shall have no right at any time to make any transfer whatsoever.” They then provided that only in the event of both the parties dying without male issue, should the daughters or their male issue be entitled to the estate of their father, and they made other provision for the devolution of the estate. In Clause 7 they agree that the document shall cease to be binding if at any time in their joint lives they divide the estate by mutual agreement, and they provide that if either of them should subsequently have male issue, that male issue should become the owner of the entire estate. A later clause negatives any suggestion that the document was intended to effect a partition, negatives the right of the widow of the deceased party to sue for partition, and gives her what we understand to be one half share of the profits, and the agreement concludes by referring to it as a will–“We therefore execute this agreement by way of a will in order that it may serve-as evidence.”
5. The appellant contends that this document is a will and has urged upon us that a member of a joint Hindu family cannot make a will. The question, however, is whether Baldeo Sahai and Lakshmi Chand, who between them owned all the co-parcenary property, could execute jointly a document of this character which would in law take effect on the death of the first of them.
6. Cases were cited in argument on both sides and we think that the true result of the authorities at the present-day is, that if a Hindu is the absolute owner of the property, whether ancestral or self-acquired, he can bequeath it by will, and in principle we are inable to see any objection to the same power being accorded to two or more Hindus, provided they together have the entire ownership of the whole of the co-parcenary property. In the case of Nagalutchmee Ummal v. Gopoo Nadaraja Chetty (1856) 6 Moo. I.A. 309 it was held that in Madras a Hindu who was in possession of property without male issue, kinsman or co-parcener, could dispose, of his property by will. The question was regarded as one of considerable importance and the Civil Judge laid the facts before the Pandits of the Sadar Dewani Adaulat at Madras. They gave an answer affirming the power of the Hindu to make a disposition of his property in the circumstances before them, and the Judge having pronounced an opinion in favour of the will, the matter came before the Privy Council. They stated: “The strictness of the ancient law had long since been relaxed and throughout Bengal a man who is the absolute owner of the property may now dispose, of it by will as he pleases; whether it be ancestral or not…. Even in Madras it is settled that a will of property, not ancestral, may be good; a decision to this effect has been recognized and acted upon by the Judicial Committee, and. indeed the rule of law to that extent is not disputed in this, case.”
7. In 1867 the Privy Council laid down, in the case of Baboo Beer Pertab Sahee v. Maharajah Rajender Pertab Sahee (1867) 12 Moo. I.A. 1 that “Decided eases, too numerous to be now questioned, have determined that the testamentary power exists, and may be exercised, at least within the limits which the law prescribes to alienation by gift inter vivos.”
8. A similar question came before the Privy Council a few years Sater in the case of Vallinayagam Pillai v. Pachche (1863) 1 Mad. H.C. Rep. 326. A reference to pages 336 to 338 shows that the Privy Council regarded the power of disposal by will of a Hindu as settled, at all events to the extent to which a gift or other disposal by act inter vivos would have the force of law.
9. In the case of Jotendromohun Tagore v. Ganendromohun Tagore (1872) 18 W.R. P.C. 359 their Lordships of the Privy Council at page 366 said as follows: “As to gifts by way of will, whatever doubts may have price been entertained by learned persons as to the existence of the testamentary power, those doubts have been dispelled by a course of practice, in itself enough, if necessary, to establish an approved usage, and by a series of judicial decisions, both here and in India, proceeding upon the assumption that gifts by will are legally binding, and recognizing the validity of that form of gift as part and parcel of the general law.” Their Lordships at page 367 lay down certain limitations as to the persons capable of taking, and it is to be noticed in this case under appeal that the learned Subordinate Judge gave a decision affecting the case as far as it concerned Musammat Anandi, who was of course alive at the date of the death of the testator.
10. In the case of Munshi Indar Sahai v. Kunwar Shiam Bahadur (1912) 17 C.W.N. 509 it will be noticed that their Lordships of the Privy Council at page 512, when dealing with what was a question of fact in that case, as to whether or not the members of the joint family had consented to the will of the testatar, assumed that the will would have been valid had consent been satisfactorily proved. Other cases which might usefully be referred to are Lakshman Dada Naik v. Ram Chandra Dada Naik (1890) I.L.R. 5 Bom. 48 (61, 62) Bai Motivahoo v. Bai Mamoobai (1897) L.R. 24 I.A. 93 (105) and Balgobind Das v. Narain Lal (1893) I.L.R. 15 All. 339.
11. We are therefore of opinion that the respondent is right in claiming that the document in suit is a will, and is a joint one, which it was legally competent for Baldeo Sahai and Lakshmi Chand to make.
12. Quite apart from this consideration, we are, as we have already said, also of opinion that the contention is well founded that the document embodied a mutual bargain, supported by legal consideration. Each party gave up the possibility of his surviving his brother, with the consequential financial advantage in that case, in consideration of obtaining for his wife a far more assured monetary position than she would otherwise have, had as the widow of a deceased Hindu member of a joint family.
13. We are therefore of opinion that the decision of the learned Subordinate Judge was right. We dismiss the appeal with costs.
Pramada Charan Banerji, J.
14. I have had the advantage of reading the judgment of the learned Chief Justice and fully agree with it.
15. The order of the Court is that the appeal is dismissed with costs.
