JUDGMENT

Mahmood, J. - These two connected appeals, numbered 1622 and 1750 of 1885, can be disposed of together, as they arise out of one and the same decree and suit; and the following pedigree shows the relative position of persona whose rights have to be considered in I his case:

                                       Hanuman Dat.                                            |                ______________________________________________________________               |                                                              |          Musammat Banai                                            Musammat Sheo Kuaria           (1st wife).                                                   (2nd wife)    Musammat Matara (daughter).                                            |               _______________________________________________________________               |                                                              |         Gobind Saran.                                                   Gopal Saran.               |          Dharup Nath          (defendant).

2. Hanuman Dat had two wives, one of whom was Musammat Bansi, who gave birth to Matara, a daughter, who had two sons, Gobind Saran and v Gopal Saran. Gobind Saran had a son named Dharup Nath, who is the defendant in the suit.

2. The property in suit to which S.A. No. 1622 relates has been found to have formed the estate of Hanuman Dat, and upon his death without a son, it would, by the usual course of Hindu law, devolve upon his two widows, who would take together as a single heir with the right of survivorship, and no part of the estate would pass to any more distant relation till both were dead. This is shown by Mr. Mayne in Section 468 (2nd ed.) of his work on J Hindu law, where he has cited numerous authorities in support of the proposition. And it has been found in this case that, after the death of Musammat Bansi, the other widow, Musammat Sheo Kuaria, came into sole possession of the property, and continued as such till 10th October 1882, when she died. The main question in this case is--On whom did the property devolve upon the death of Musammat Sheo Kuaria?

3. It is a principle of Hindu law, as Mr. Mayne has stated in Section 422 (2nd ed.) of his work, that "the right of succession under Hindu law is a right which vests immediately on the death of the owner of the property. It cannot, under any circumstances, remain in abeyance. And the rightful heir is the person who is himself the next of kin at that time. No one can claim through or under any other person who has not himself taken, nor is he disentitled be cause his ancestor could not have claimed. For instance, under certain circumstances a daughter's son would be heir, and would transmit the whole estate to his issue. But if he died before his grandfather, his son would never take."

4. One of the sons of Musammat Matara, namely, Gopal Saran, was alive at the time of Musammat Sheo Kuaria's death in October 1882; but his brother, Gobind Saran, father of the defendant, was admittedly missing; and it has been found by the learned Judge of the Lower Appellate Court that neither the brother nor the son of Gobind, nor any one else, had heard of him ever since he left home fifteen years ago; and the learned Judge has fortified this conclusion by the fact that on the 24th February 1882, the defendant Dharup Nath himself stated on oath that his father Gobind had gone away ten years before, and had not since been heard of. And upon this state of things the learned Judge, applying the provisions of Sections 107 and 108 of the Evidence Act (I of 1872), held that the missing Gobind Saran, father of the defendant, could not be regarded as having been alive at the time of Musammat Sheo Kuaria's death in 1882, and that the whole estate which she held by inheritance from her husband Hanuman Dat, devolved entirely upon Gopal Saran, to the execution of the defendant Dharup Nath.

5. Now, upon these findings of fact, which we