CHOWDRY PADAM SING Vs. KOER UDAYA SING

JUDGEMENT

(1.) This is an appeal from a decree of the late Sudder Dewanny Adawlut at Agra, reversing a decree of the Principal Sudder Ameen of Zilla Meerut, made in favour of the appellant. The suit was instituted by Chowdry Mahur Sing, the father of the respondent (who died while the suit was pending), to recover possession from the appellant of the whole of the movable and immovable property formerly belonging to Chowdry Hem Sing, deceased, a cousin of the plaintiff, consisting of ancestral property and of property acquired and amassed by Chowdry Hem Sing and by his widow Khusal Koer, out of the proceeds of his ancestral estate.

(2.) The suit was instituted after the death of the widow Khusal Koer, the plaintiff's claim being founded on his right of heirship to Hem Sing. It appears by the plaint and a genealogical table annexed to it, that there were other persons descended from the same common ancestor as the plaintiff, who would have an equal right with him to a share in the succession of Hem Sing. The plaintiff, in his plaint, assigns as a reason for not including them among the defendants, that "they had not possession of the property in suit, and that if they thought they had any right or interest in the matter, they could proceed against the plaintiff at their option."

(3.) The plaint states that after the death of Khusal Koer the managers of the estate presented a spurious will to the Collector, setting forth the defendant as her adopted son, and by that means he contrived to get possession of the estate. And it alleges that the defendant is not the adopted son of the deceased widow Khusal Koer, and that she had no power to adopt a son as long as the plaintiff was alive. That the defendant does not belong to the family of which Khusal Koer and plaintiff are members, and that he is merely the foster son of Suhej Koer. That it is not true that Khusal Koer ever executed a will, and, had she done so, a will made on the point of death would not be legal.