PREM CHAND Vs. LILAWATI SHANTI

JUDGEMENT

(1.) This is an appeal by two defendants, which arises out of a suit for declaration and possession. The suit was filed by Shrimati Lilawati, daughter of Lazar, a predeceased son; of Samuel. Prem Chand (defendant No. 1) and, Timtawas (defendant No. 2) are the sons of Samuel, while Srimati Shanti (defendant No. 3) is a daughter of Samuel. Garis Chand (defendant No. 4) is the son of Srimati Tabina, another daughter of Samuel, while Srimati Premi (defendant No. 5) is similarly the daughter of Srimati Ester, yet another daughter of Samuel. Samuel died on 1-6-1948, leaving lands and. other properties in village Melan, sub-tehsil Kumarsain, district Mahasu. His property has been mutated in the names of Prem Chand and Timtawas, defendants 1 and 2, and they have taken possession thereof. The plaintiff's case was that parties, being Indian Christians, are governed, in matter of succession, by the provisions of Succession Act, 1925. Accordingly, she claimed one sixth share of the property left by Samuel. Since defendants 1 and 2 refused to concede her claim, she had to file the suit. The other defendants were impleaded as they were also coheirs of the property left by Samuel. Consequently, the plaintiff prayed for a declaration that she was entitled to one-sixth of the property left by Samuel and for possession of that share.,.

(2.) Defendants 4 and 5 admitted the plaintiff's claim, but asked for no relief for them selves. The remaining defendants, i.e. defendants 1 to 3, while admitting that parties were Christians, stoutly denied that they were governed by the provisions of the Indian Succession Act in matters of inheritance. They claimed that being agriculturists, they were governed by custom prevalent in ilaqa Kotgarh, whereby Prem chand and Timtawas were as sons the sole heirs to Samuel's property;

(3.) On these pleadings, the following issues were framed by the trial Court: