PREM CHAND Vs. BITTAN DEVI

JUDGEMENT

(1.) THIS is a defendant's second appeal against the judgment and decree of the District Judge of gonda modifying the judgment and decree passed by the Civil Judge, Bahraich.

(2.) ONE Barati Lal had two sons, Brahma Prasad and Jot Prasad. Brahma Prasad had a son bhagawti Prasad who had two sons, Prem Chand and Gyan Chand. Jot Prasad, the second son of barati Lal, died issueless leaving a widow Bittan Devi. Barati Lal was possessed of two plots nos. 5277 and 5298 which had groves standing on them along with considerable other property with which I am not concerned in the present appeal. Barati Lal died in 1932 when his two sons, brahrna Prasad and Jot Prasad, were alive. Jot Prasad died in 1936. His widow Smt. Bittan Devi instituted a suit for the possession of a half share in the grove standing in the two plots mentioned above on the allegations that a half share in each of these two groves belonged to her husband Jot Prasad and that she succeeded to the property of her husband on his death in 1936. The cairn was resisted on behalf of the defendants who were the representatives of Brahma prasad on two points, firstly it was alleged that plot No. 5277 had been made the subject of a waqf by Barati Lal in 1908 and was under the management of the waqf with which the parties had no concern. Secondly it was urged that Jot Prasad died as a member of joint Hindu family and grove No. 5298 was a part of the joint family property and as such the plaintiff Bittan Devi had no right or interest in that property which passed to the survivors of the joint family.

(3.) THE lower Court came to the conclusion that the property was the joint ancestral property of barati Lal and as such Jot Prasad had no separate interest in it. It also held that Jot Prasad died as a member of a joint Hindu family and the property passed to the survivors. With regard to plot no, 5277 the trial court held that there had been a valid waqf in respect of this property and as such the plaintiff acquired no title in this property. The plaintiff then went in appeal to the district Judge who modified the decree of the trial Court. The District Judge held the waqf to be valid but found that grove No. 5298 was the self-acquired property of Barati Lal and passed to jot Prasad under a will dated, 12-10-1927, vide Ex. I and as such Jot Prasad was the separate owner of a half grove. He decreed the claim of the plaintiff in respect of this half share and maintained the judgment of the trial court in respect of the other plot No. 5277. The defendants have now come up in second appeal. They have submitted to the decree of the two Courts below in respect of plot No. 5277 and no appeal has been instituted challenging the propriety of the order of the Courts below in respect of that grove. They have come up in appeal only in respect of the decree of the District Judge regarding grove No. 5298.