VIKARMA SINGH Vs. PARBATI KUNWAR

JUDGEMENT

(1.) This appeal has come before us on reference by a learned Single Judge of this Court, as in his opinion it raises a question of importance and some difficulty, touching which there is no decision and that it should, therefore be decided by a Bench. The question posed is whether a custom excluding daughters would also exclude daughter's daughter from inheritance when at the time the custom grew, the daughter's daughter was not an heir under the Hindu Law.

(2.) The appeal has arisen out of a suit instituted by respondents Hansraj Singh and Vindraban Singh for damages and recovery of possession of cultivatory plots mentioned in annexure 'A' and the grove mentioned in annexure 'B' to the plaint. The suit was instituted against twelve defendants. It was alleged in the plaint that one Jagannath Singh who was the owner of the property in suit had three daughters Smt. Ramraj Kunwar, Smt. Mainatha Kunwar and Smt. Bhoga Kunwar. That Hansraj Singh, plaintiff No. 1 is the son of Smt. Ramraj Kunwar, Vindraban Singh plaintiff No. 2 and Smt. Parvati Kunwar defendant No. 12 (now respondent No, 1) are the son and daughter respectively of Smt. Mainatha Kunwar and Rameshwar Bux Singh defendant No. 11 (now respondent No. 4) is the son of Smt. Bhoga Kunwar. Jagannath Singh died before the 2nd settlement and on his death Smt. Bhagwani Kuer, his widow, succeeded' to his property as a Hindu widow for her lifetime and that 'on the death of Smt. Bhagwani Kuer which took place on 28th April, 1938, the plaintiffs and defendants Nos. 11 and 12 remained as the only heirs of Jagannath Singh and Smt. Bhagwani Kuer, Lastly, it was alleged that defendants Nos. 1 to 10 were in illegal possession over the property in suit, hence the plaintiffs were entitled to recover possession of it from defendants Nos. 1 to 10. About defendants Nos. 11 and 12 it was alleged that they had also right in the property but as they did not join the plaintiffs in the suit they had been arrayed as defendants and that, if they so desired, defendants Nos. 11 and 12 could also join as plaintiffs and plaintiffs Hansraj Singh and Vindraban Singh would have no objection thereto. According to the plaintiffs the suit was filed in the interests of defendants Nos. 11 and 12 also.

(3.) The suit was contested by defendants Nos. 1 to 10 alone.