JASODA KUER Vs. DULHIN PHUL KUER

JUDGEMENT

(1.) The controversy in this case centres round the properties of one Har Frasad Misser of village Dumraon which had been given to him by his father-in-law Rachheya Misser under a deed of gift dated 30-8-1878. Rachheya Misser was a resident of Rajdiha and had three daughters: (1) Sheobarta Kuer, (2) Anurago Kuer, and (3) Lakho Kuer. It was the first of these three daughters, namely, Sheobarta Kuer who was married to Har Prasad. Anurago and Lakho were married with Lachhmi Choubey and Ram Badhai Choubey respectively, both of whom were residents of Belaur. As Rachheya Misser had no son he had made a gift of all his properties in equal shares in favour of the aforesaid three sons-in-law. And it is not denied that the properties given to Har Prasad under the aforesaid deed of gift remained all along in his possession as his absolute properties till his death which event took place sometime in the year 1896. Thereafter his widow Sheobarta died some-time in the year 1346 Fasli corresponding to the year 1938 and within 12 years from the date of her death the present suit was instituted for declaration that the plaintiff was the daughter of Har Prasad and as such it was she who on the death of Sheo Barta was entitled to his properties and not Mosst. jasoda Kuer (defendant No. 1) the admitted widow of Har Prasad's predeceased son Bhagwat Misser. Further therein she also prayed for recovery of possession and mesne profits. In support of this claim the following genealogy was relied upon at the trial : HAR PRASAD MISSER = SHEOBARTA ________________________________ | ___________________________ | | | Bhagwat Misser Phula Kuer Ramdasi Kuer (deceased) (Plaintiff) (deceased). =Jasoda Kuer (Deft. No. 1) That means, according to the plaintiff, Har Prasad had one son Bhagwat Misser and two daughters. Phula Kuer and Ramdasi Kuer, of whom Bhagwat Misser died issuless in the life-time of his father Har Prasad. Thus Har Prasad on his death left behind him his widow Sheobarta, his two daughters Phula Kuer and Ramdasi Kuer, and Jasoda Kuer, the widow of the predeceased son Bhagwat. And as among these Sheobarta was the nearest heir, all the properties left by her and she remained in possession thereof till her life-time and it is not denied that it was her name that found place in all the papers of the cadestral survey with regard to these properties. Further, it was claimed that the plaintiff and her sister Ramdasi Kuer had been married with two brothers SheoKumar Ojha and Girja Dutt Ojha respectively of village Singhanpura and it was done by Sheobarta her-seu sometime between 1900 and 1903. But just thereafter Ramdasi Kuer died without any issue. So, in the year 1938 when Sheobarta died, she left behind only two member; in the family, namely, Phula Kuer (plaintiff) and Jasoda Kuer (defendant No. 1). The claim of the plaintiff is that as between them she was the preferential heir of Har Prasad, therefore, on the death of Sheobarta all the properties of Har Prasad were inherited by her and she came in possession thereof. But as Jasoda Kuer (defendant No. 1) was entitled to maintenance, she left them under her management. Subsequently, however, she came to know that Jasoda Kuer was repudiating her title and was dealing with proper-lies as her own. Hence the suit for the reliefs stated above impleading therein the alienees as defendants 2 to 4.

(2.) Defendant No. 1 in defence of her title set up a counter genealogy which, as given in the writ-ten-statement, is as follows : BHAIRO MISSIR (Died) | ________________________________________________________________________________ | | | | Ram Saran Missir Lachhuman Missir Naubat Missir Gauri Missir (died) (died issueless) (died) (died issueless) | | ___________________ ________________________________________________ | | | | | | Mathura Har Prasad Kishore Missir Bajrang Missir Baldeo Missir Jagdam Missir Missir Missir (died) (died) (died issueless) (died issueless) (died) (died) | | | Sheo Prasad Missir |_____________ _________________|_____________ _____________|____________ | | | | Bhagwat Missir Jagtanand Missir Mahadeo missir Kadar Missir (died) (died issueless). (died issueless) (died) =Jasoda Kuer According to her, Har Prasad Missir had no daughter but only two sons, namely, (1) Bhagwat Missir and (2) Jagtanand Missir, both of whom survived their father Har Prasad Missir. On the death of Har Prasad the properties devolved upon Bhagwat Missir by survivorship. And while he was thus in possession, his brother Jagtanand Missir first died and then he leaving behind him his widow Jasoda Kuer and his mother Sheobarta. Accordingly, on the death of Bhagat Missir, it was Jasoda Kuer who inherited the properties of Har Prasad, But as Sheobarta was the eldest in the family, the management of these properties was left in her hand; and perhaps it was for that reason, it is said, that her name was recorded in the survey record-of-rights and not that of Jasoda Kuer. As such she claimed that it was she who was entitled to the properties left by Har Prasad and not the plaintiff, who, according to her, was a stranger to the family and, as a matter of fact, was the daughter of one Rajnet Choubey of Rajdihan, the son of Anurago. She further claimed in her written-statement that she had already on 19-12-1946, executed a deed of surrender (exhibit C) in favour of Sheo Frasad Misser who then, according to her, was the neartest agnate of Har Prasad. Accordingly, the plaintiff therefore got her plaint amended and made Sheo Prasad Misser also a party to the suit as defendant No. 5. But as he died issueless during the pendency of the suit leaving his widow Fuljharo Kuer alone surviving him, she was brought on the record in his place as defendant No. 5. Thus, on the allegations made by the parties, two main questions that arose for consideration at the trial were, (1) whether Bhagwat Misser predeceased his father Har Prasad Missir, and (2) whether the plaintiff was the daughter of Har Prasad. But on both these points the Court found with the plaintiff and finally decreed the suit.

(3.) Now on appeal, which is on behalf of only two defendants, Jasoda Kuer (defendant No. 1) and Fuljharo Kuer (defendant No 5), the first finding, namely, that Bhagwat Missir predeceased his father Har Prasad Missir has not been challenged by Mr. Chatterji appearing for appellant No. 2, and so far as appellant No. 1 is concerned, she has now, during the pendency of the appeal, compromised the case with the plaintiff and has also filed an application to that effect. Therein she has admitted the following facts and has prayed that the appeal be disposed of on compromise so far as she and respondent No. 1 are concerned : "(a) The appellant No. 1 Jasoda Kuer accepting the respondents case and the decree passed in her favour. (b) The respondents do not press for their costs either in the Court below or in this Court and the decree of the Court below be confirmed." Accordingly, the appeal is now pressed only on behalf of appellant No. 2 and the main contention raised on her behalf is that the plaintiff is not the daughter of Har Prasad and the finding given, by the trial Court on this point is perverse and cannot be Sustained. In support of this contention what has been argued is that, Phula Kuer being the plaintiff, she has to prove by cogent evidence that she is the daughter of Har Prasad and in doing that she cannot take any advantage of the fact that the defendants have failed to prove that the plaintiff is the daughter of Rajnet Choubey. As a proposition of law, there can be no two opinions on this submission, but at the same time on the facts of this case, it cannot be denied that the trial Court had only two versions before it about the parentage of Phula Kuer : the one was, as contended by the plaintiff, that she was the daughter of Har Prasad, and the other, as contended by the defendants, that she was the daughter of one Rajnet Choubey. Naturally, therefore, if the evidence given on behalf of the defendants on the point that the plaintiff was the daughter of Rajnet Choubey was condemned as unworthy of reliance, that was bound to have certain repercussion in the process of appreciating the evidence given by the plaintiff, though initial onus was always on the plaintiff to establish the same. But once that onus was discharged, that got further strength from the conclusion that the counter-case set up by the defendants was not at all true. And I think it was in this sense that the trial Court observed that it was also a factor to be taken into consideration and not in the sense that because the case of the defence was false, therefore, the case of the plaintiff was true.