SUKHNI Vs. SUKHBASI

JUDGEMENT

(1.) THIS is a plaintiffs' second appeal from the concurrent decisions of the courts below dismissing their suit for partition of certain holdings and for damages against the defendant-respondents for cutting away the crops sown by the plaintiffs. The facts which are common ground or found by the court below are these. The first plaintiff appellant. Smt. Sukhni is the mother of the second, Smt. Patti. They are the widow and daughter of one Sita Ram, and claim the land in dispute as his heirs. It is common ground that Sita Ram was the fixed-rate tenant to the extent of a half-share in the holdings in dispute. He died in or about the year 1945-46, and left, in addition to his widow and daughter, a mother, Smt. Sukhbasi, who is the first defendant in the suit. At the time of his death the daughter Smt. Patti was about 3 years old. Within a year of his death Smt. Sukhni married again. It is not clear what happened to her daughter after her mother had re-married whether she continued to live with her mother or with her grandmother Sukhhasi and the other relations of Sita Ram. On 23-7-1949 a suit was filed by Smt. Patti under the guardianship of a cousin of her late father alleging that her grand-mother had alienated her father's share in the holding in favour of her (grand-mother's) two nephews, and challenging the legality of this gift. She contended that as her mother had re-married she had forfeited her rights in Sita Rain's holding which devolved on Smt. Patti as his daughter. She asked for a declaration that the sale deed executed by her grand-mother Sukhbasi in favour of her two nephews was illegal, void and of no effect, and that she was the lawful heir of her late father's holding. The defendants in the suit were the grand-mother Sukhbasi, and her two donees. They are all defendants in the present suit. They resisted the earlier suit and denied that Smt. Patti had any right or interest in Sita Ram's holding, and even denied that she was his daughter. They pleaded that the gift deed executed by Sukhbasi the mother of Sita Ram, in favour of her nephews was valid, as Sukhbasi was the legal heir of Sita Ram after his widow had forfeited her rights on her re-marriage.

(2.) DURING the hearing of that suit, Sita Ram's widow--the mother of Smt. Patti and the first plaintiff in the present suit--was made a defendant on her own application and permitted to file a written statement. She pleaded that she was the rightful heir of Sita Ram and had not forfeited her rights on re-marriage. She relied on the personal law of inheritance governing the succession to Sita Rani's holding. The court held that she was not divested of her rights in the land on account of her re-marriage and continued to be a fixed rate tenant of the holding. On this finding, it further held that the daughter Smt. Patti (plaintiff in that suit) could not claim any rights in the holding during the life time of her mother, and dismissed her suit as incompetent. The other findings of the court in that suit were that the suit: was not barred by Section 183 of the U. P. Tenancy Act, nor by Section 42 of the Specific Relief Act; nor was it bad for non- joinder of parties. The court gave no finding on the defendants' plea that Smt. Patti was not the daughter of Sita Ram.

(3.) THE co-sharer defendants of the holding did not contest the suit. It was resisted only by Sukhbasi (mother of Sita Ram) and her two donees Smt. Hubraji and Smt. Ramraji THE contesting defendants pleaded that Smt. Patti's claim was barred by resjudicata, as in the earlier suit it had been held that she had no right or interest in the land. It was also contended that Smt. Patti was not the daughter of Sita Ram and had no rights, in the land, and that Smt. Sukhni had forfeited all rights in the holding on account of her re-marriage. It was also pleaded that the suit was barred by limitation.