CHAMPA DEVI Vs. MADHO SHARAN SINGH

JUDGEMENT

(1.) This is a first appeal by defendants 2nd Party against the judgment and decree of learned Additional Subordinate Judge III, Patna by which he decreed the suit instituted by Akesia Kuer, respondent 1st Party, which arose in the following circumstances.

(2.) Certain facts are admitted and they are these. One Bandhu Singh had foul sons including Kirtam Singh, Deo Prasad Singh, husband of Most. Jit Kuer, was son of Kirtam Singh from his first wife Murti Devi. After the death of his first wife, Kirtam Singh took Baso Kuer as his second wife. All the three brothers of Kirtam Singh died issueless in a state of jointness with Kirtam Singh and his son Deo Prasad Singh and the entire ancestral properties, once held by Bandhu Singh, passed on to Kirtam Singh and his son Deo Prasad Singh by the right of survivorship.

(3.) Cholera broke out in village Tarwan in the year 1924 and both Kirtam Singh and his son Deo Prasad Singh died of cholera within an interval of few days. Immediately after their death a controversy arose as to whether it was the father who predeceased the son or vice versa. This led to a criminal case alleging interpolation in the death register regarding the time of the death of Kirtam Singh, the result whereof is not known. There was a dispute at the trial stage of this suit as to who died first. The trial Court, however, found that Deo Prasad Singh predeceased Kirtam Singh and being confronted with the admission in the written statement filed by the appellants, they did not challenge this finding of the trial Court before this Court. It is thus, now, undisputed that Deo Prasad Singh and Kirtam Singh died on 9-8-1924 and 12-8-1S24 respectively leaving behind their widows, Jit Kuer, initially impleaded as defendant No. 1 (defendant Ist Party), and Baso Kuer respectively. It is further undisputed that, while Jit Kuer died during the pendency of the suit in the trial Court before the hearing of the suit commenced, Baso Kuer died on 19-9-1957.