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FAMILY LAW-2

CASE COMMENT
MUHAMMAD HUSAIN KHAN AND OTHERS …V. KISHVA NANDAN SAHAI,
BABU MINOR THROUGH BABU DEVA NANDAN SAHAI AIR 1937 PC 233

INTRODUCTION:

This case of “Muhammad Husain khan and ors... V. kishva nandan sahai, babu minor
through babu deva nandan sahai”1 is a case that was decided on may 7, 1937 on a re- appeal
to the high court of Allahabad by the defendants in the subordinate court and they have
appealed as the appellants in the high court before the privy council, the judgment of the case
was given by the lordship bench of Lord Maugham, Sir Shadi lal & Sir George Rankin .The
case mainly focuses on the context of inheritance of ancestral property under Hindu law on
the ambit of law that prevails over the period in hindu system of law for the inheritance of
property from the side of paternal ancestors which can be inferred as the property inherited
from the male side of the father, father’s father and father’s ,father’s father will be considered
as ancestral property and the son from the male side will be a coparcener to the property and
will have a birth right over it. This case mainly deals with the law under the mitakshara
school of inheritance under the hindu law. The main issues of the case are to check to
validating an auction for the possession of the property of a village called Kalinjar Tirhati is
valid or not for an absolute ancestral property and whether the property inherited from
maternal grandfather will be considered as ancestral property or joint family property? Will
be the main area to focus on the judgment of the court will be analysed with the explaining of
the challenged decision of the court to check the facts and the judgment analysis of the case
and the comments or the interpretation without prejudice but there will be a course of
reasonable doubt prevailing with prejudice on the ambiguity that so far being relied on my
assertion of the facts, finding and conclusion of the court.

1
1937 SCC Online PC 48: (1937) 46
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BACKGROUND OF THE CASE:

The mere facts of the case have a lot of ambiguous nature being consecrated in the case as
there are misunderstanding while asserting the facts that was been put forth by both appellant
and the respondent to come to the court to have a prefixed of facts to the court by the judges.

This case initially starts from the person Ganesh Prasad(father), a resident of Banda in the
Province of Agra, was the proprietor of a large and valuable estate, including the village in
dispute. He died on 10th May 1914, leaving him surviving a son, Bindeshri Prasad, who was
thereupon recorded in the Revenue Records as the proprietor of the estate left by his father,
and the son was married to a woman called giri bala. “In execution of a decree for money
obtained by a creditor against Bindeshri Prasad, the village of Kalinjar Tirhati was sold by
auction on November 20, Sir 1924; and the sale was confirmed on January 25, 1925.
Bindeshri Prasad then brought the suit, which has led to the present appeal, claiming.
possession of the property on the ground that the sale was vitiated by fraud. He died on
December 25, 1926, and in March, 1927, his widow, Giri Bala, applied for the substitution of
her name as the plaintiff in the suit. She was admittedly the sole heiress of her deceased
husband, and this application was accordingly granted. She also asked for leave to amend the
plaint on (the ground that under a will made by her father-in-law, Ganesh Prasad, on April 5,
1914, her husband got the estate only for his life, and that on the latter's death his life interest
came to an end, and the devise in her favour became operative, making her absolute owner of
the estate including the village in question. She accordingly prayed that, even if the sale be
held to be binding upon her husband, it should be declared to be inoperative as against her
rights of ownership.”2 The ownership of the estate and the changing of the plaint was initially
accepted by the subordinate court judge and the defendants not accepting it challenged it and
later the successor of the latter judge dismissed the issues challenging on various grounds of
case , and later on the high court appeal the amend was accepted. It was onto controversy by
the virtue of interpreting and stating the Sec. 99 of the Code of Civil Procedure, 1908,
“provides that no decree shall be reversed or substantially varied, nor shall any case be
remanded in appeal, on account of any misjoinder of parties or causes of action, or any error,
defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the
jurisdiction of the Court.”3 And later it was detailed and the amendment was accepted by
overruling the previous by the upholding the trial on both the causes of action, they do not

2
https://indiankanoon.org/doc/1934862/
3
Code of Civil Procedure CPC, 1908
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think that the trial should be rendered abortive, when the alleged misjoinder has affected
neither the merits of the case nor the jurisdiction of the Court. The further issues of the
proprietor Ganesh prasad with some dispute with his son made a will to public propertied
initially on august 4,1911 to public delegate and appointed 7 persons as trustees and among
one of them was provided with a copy of the will was to the collector of the district Mr.
Swan. And again, the proprietor overruled the will by making a new will for his son on April
5,1914 after the reconciliation with son. the trustees to initial will get overruled by accepting
the second will and it was solved. And now the main issue was that the proprietor Ganesh
received his property from his maternal grandfather, Jadu Ram; and the question arises
whether it was ancestral in his hands in the sense that his son acquired therein an interest by
birth jointly with him. The property as an ancestral property was questioned and the issues of
ancestral property and the auction property was the main problem analysis of the case that
was on the judgment.

ANALYSIS OF THE CASE:

The analysis of the case will mainly deal with the decision of the court based on the
judgment and the critical interpretation on the understanding of the case will be mentioned.
The main crux of the judgment that will be commented with respect to the judgement and the
legal opinion on the subject matter will be specified.

 The first issue was with the overruling of the facts by altering the facts with the effect
of personal capacity was deeply being criticized and the legal provision of Sec. 99 of
the Code of Civil Procedure, 1908 made it even harder to accept the amending of facts
for which the reasoning stated by the lordship that the main objective in the issue is
now narrowed down to the simple point whether, even if there was a misjoinder, their
Lordships should, on that ground, reverse the decree granted by the High Court. The
provisions contained in the Civil Procedure Code do not regulate the procedure of
their Lordships in hearing appeals from India, but there can be no doubt that the rule
embodied in S. 99 proceeds upon a sound principle, and is calculated to promote
justice; and their Lordships are not prepared to adopt a course which would merely
prolong litigation. Assuming that the High Court has made error in overruling the
objection to the amendment and in upholding the trial on both the causes of action,
they do not think that the trial should be rendered abortive, when the alleged
misjoinder has affected neither the merits of the case nor the jurisdiction of the Court ,
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as the mainframe of the fact was remained unaltered was the reasoning that can be
accepted as there was certain ambiguity between the parties in the possession of
property.
 The second issue can be with overruling of the will made by Ganesh, as the initial will
made by him for the public was overruled by the second will made for his son. The
testator has been given right to alter or revoke a will under the legal provision of
Indian succession act,1925 which deals with the testamentary succession sec.62 of act
allows to revoke and alter the will, but in the case the initial will made was not
revoked but anew will was made but only the proof of second will existed so the son
had the right to enjoy the property is still a criticised aspect of law.
 The third and the main issue of this case can be regarded as the property inherited
from the maternal grandfather account to ancestral property was actually not accepted
in mitakshara system in hindu law as the existence of the person other than the male
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side will be obstacle in inheriting the property with the Atar Singh v. Thakar Singh
Will make it under the issue, but the case of Raja Chelikani Venkayyamma Garu v.
Raja Chelikani Venkataramanayyamma5 will have situation that 2 brothers as the
members of a joint family inherited property from maternal grandfather , and one
brother died without a male issue and his widow claimed his share by inheritance and
the other brother claimed it by doctrine of survivorship and the council held the
property as a joint family property and passed the survivorship to the other brother.
But in this case the decision was held that the property of the matter cannot be held as
ancestral property. This made a contrary situation with respect to the case.
 The estate that was for auction was given to giri bala making her the absolute owner
of the estate of the village as the court held that “Ganesh Prasad consequently had full
power of disposal over that estate, and the devise made by him in favour of his
daughter-in-law, Giri Bala, could not be challenged by his son or any other person.
On the death of her husband, the devise in her favour came into operation and she
became the absolute owner of the village Kalinjar Tirhati, as of the remaining estate;
and the sale of that village in execution proceedings against her husband could not
adversely affect her title.” And their Lordships ordered to accept the decree of the
High Court should be affirmed, and this appeal should be dismissed with costs.

4
(1908) 10 BOM LR 790
5
ILR (1902) 25 mad 678
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this makes the case to get to the judgment and the council dismissed the appeal but yet the
case had certain degree of ambiguity and subjective set of facts made it a contrary
decision.

CONCLUSION:

The judgement that was unanimously declared only had the part of the procedure of the
hearing by the facts and evidence of the case but the element of TRUTH was been still
left in the question as no procedural law seeks for the test of objective truth is confined
only to the facts and circumstantial proof. The decision has its own reasoning for the
issues of the case, but on my opinion the facts of the case based on the council
interpretation had a biased opinion of the lordships. The case can only provide justice to
one of the parties for the other the matter of justice is always an ambiguous aspect of an
undefined word.

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THANK YOU

SUBMITTED BY:

ABHISHEK.S

BC0190002
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