THAKURAIN FULBATI KUMARI Vs. MAHARAJ KUMAR RAO

JUDGEMENT

(1.) The dispute in this case concerns the title to two villages and certain lands in a third comprised in taluka Dumri, kismat 4 annas, which it is alleged is a ghatwali tenure formerly belonging to Ghanasyam Singh as ghatwal who died childless in the year 1880 (1287, F.S), leaving two widows. The senior widow, Thakurain Kishori Kumari, succeeded to her husband's estate in circumstances which will be referred to later, and died in the year 1916. The junior widow, Thakurain Phulbati Kumari, who survived her co-widow, is the plaintiff in the suit and appellant in this appeal. She claims the property as the reversionary heir of her husband on the death of the senior widow. The defendant, Maharaj Kumar Maheshwari Prasad Singh, the respondent in this appeal, is the son of the late Maharaja Bahadur of Gidhaur and brother of the present holder of that title. His title to the property is based upon a conveyance from the senior widow, Kishori Kumari under a kabala, dated the 13/10/1898, in which Pairu Singh, the younger brother and next male heir of Ghanasyam Singh, joined. The appellant disputes Kishori Kumari's right to alienate the property in question and contends that the estate is inalienable. The respondent on the other hand disputes the appellant's right to inherit contending that her sole right in the property is that of maintenance. By her plaint the appellant alleges that the 4-annas share in toluka, Dumri was settled upon Thakur Jungle Singh, the ancestor of her husband, as a ghatwali service tenure by Captain James Brown, the sardar of the jungles and tarais of Gidhaur, Kharagpur, Birbhum and the adjacent tracts, in 1776 under a sanad, dated the 17th December that year, the other 12-annas share being settled with other ghatwals, and that Rs.142.0012-0, together with cess, is payable as perpetual mukarrari rent to the zamindar, the Maharaja Bahadur of Gidhaur, the entire income from the ghatwali interest being appropriated by the ghatwali for the time being. She pleads that by the custom of her husband's family the estate descends to the eldest son of the ghatwal, the remaining sons, if any, getting maintenance, and, if the ghatwal dies without issue, his widow becomes proprietor and if there be more than one widow the eldest succeeds and alter her the second widow takes. She alleges that except for the properties in dispute she came into possession of the remaining properties of the estate in 1916 on the death of Kishori Kumari. She further pleads that there was no legal necessity which would justify the transfer by Kishori Kumari to the respondent.

(2.) The respondent, by his written statement, denies that the estate is a ghatwali tenure and pleads that it was a mukarrari interest held by Ghanasyam Singh and his ancestors from the Maharaja of Gidhaur at the rent named and cesses. He admits that by the custom of the family the eldest son succeeds and if there be no issue the first widow succeeds and the second gets maintenance, but he denies that the second widow succeeds or the death of the first and alleges that the eldest son of the nearest gotia of the last male holder inherits on the death of the senior widow, the second widow continuing to get maintenance, and having no rights of inheritance. By this is apparently meant that the eldest member of the most direct line of descent succeeds in preference to those nearer in blood but less direct in descent from the common ancestor, that is, according to the rule of primogeniture. He further alleges that in the year 1900, by a bazidawa deed, dated the 8th February that year, after the death of Pairu Singh (who died in 1899). Kishori Kumari relinquished the whole of her interest to Pairu's eldest son, Mukhtar Singh, the next male agnate, thereby accelerating the succession, and that Mukhtar Singh got his name registered as mukarraridar and took possession and has continued in possession as ostensible owner ever since. He denies that the appellant ever got possession of any portion of the property. He also pleads that the property was not inalienable and that in any the transfer to him was justified by legal necessity.

(3.) The learned Subordinate Judge found all the issues in favour of the respondent and dismissed the suit. From that decision the plaintiff has appealed.