Judgement

Appeal (No. 3 of 1943) from a decree of the Chief Court of Oudh (February 27, 1940), which reversed a decree of the Civil Judge, Sitapur (September 30, 1936) and decreed the plaintiffs (respondents) suit.

The following facts are taken from the judgment of the Judicial Committee The appellant before the Board was the second defendant in the suit, the surviving widow of one Mathura Singh, deceased. The first and the only other defendant, her co-widow, did not join the appellant in filing this appeal. She was therefore made the third respondent. During the pendency of the appeal she died, and her name was removed, and the appellant was made her heir and legal representative by the order of the Chief Court. The deceased husband of respondent No. 1, and respondent No. 2, were the original plaintiffs in the suit. They will be referred to as the respondents. The relationship of the parties to the suit is shown in the following genealogical table—

Bakhtawar Singh

|

| | |

Raghubar Ram Dayal Ram Sahai = Raj Kuer

(d. between 1874 and 1889) (d. 1899) (d. about 1886) (d.)

| | |

| |

| | | |

Sheo Singh =Mst.Bittan Maharaj Mathura = Mst. Suraj Mst.

(d.17.12.20) Kuer Kuer (d. 11.12.34) Kuer Badan

(d. 28.2.24) (d.) def. No. 1 Kuer

| (d. 7.5.41) (d.)

|

= Mst. Kan | = Mst. Inder |

chan Kuer | Kuer |

(d.25.4.30) | def. No. 2 |

| Appellant |

| | |

| |

| | | |

Mulchand Shanker Dayal Munia Kuer |

(Plf. No.1) (plf. No.2 |

=Mst. Pirthipal Kuer Respt. No.2) |

(Respt. No.1) |

| |

Lalay Gokaran

|

|

Ram

Bharose

One Bakhtawar Singh, a Hindu, had three sons, Raghubar, Ram Dayal, and Ram Sahai. Of these, Raghubar and Ram Dayal had each one son, called respectively, Sheo Singh and Mathura Singh; and Raghubar had a daughter as well, whose sons were the plaintiffs in the suit. Sheo Singh died on December 17, 1920, without issue, leaving two widows, Musammat Bittan Kuer, who died on February 28, 1924, and Musammat Kanchan Kuer, who died on April 25, 1930. Mathura Singh, the cousin of Sheo Singh, died on December 11, 1934, leaving two widows—the defendants in the suit—of whom the surviving widow, the second defendant was, as was stated before, the appellant.

The appeal arose out of a suit instituted by the respondents for possession of the immovable properties mentioned in lists A and B of the plaint, under claim of being the heirs of Sheo Singh, the last full owner. They claimed the properties as Sheo Singhs separate estate, to which they, as his sisters sons, were entitled to succeed by virtue of s. 2 of the Hindu Law of Inheritance (Amendment) Act, II of 1929 (hereinafter referred to as " the Act . The Act applied to persons otherwise subject to the law of the Mitakshara. Section 2 of the Act said that A sons daughter, daughters daughter, sister “and sisters son shall in the order so specified be entitled to “rank in the order of succession next after a fathers father “and before a fathers brother."

It would be observed that Mathura Singh, as the son of Sheo Singhs fathers brother, and ranking as such in the Mitakshara order of succession, would, under the section, be postponed to the plaintiff’s as sisters sons of Sheo Singh. The caseof the respondents was that after the death of Sheo Singh, his widows, Bittan Kuer and Kanchan Kuer, entered into joint possession of Sheo Singhs property, that on Bittan Kuers death, Kanchan Kuer came into possession of the entire property, that on her death Mathura Singh took wrongful possession of the same, and that on his death his widows obtained wrongful possession against them.

The appellant and her co-widow resisted the claim of the respondents on the alternative contentions, namely (i.) that the properties in suit were joint family properties which on Sheo Singhs death in 1920 passed by survivorship to their husband, and on his death in 1934 to themselves for a limited estate, and the appellant claimed that on her co-widows death they vested in herself alone; and (2.) that even if the properties were the separat