SUDARSHAN SINGH Vs. SURESH SINGH

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiffs alleged that the properties mentioned in Schedules A. B. C. of the plaint belonged to one Ramdhari Singh of village Mohammadpur. Ram-dhari Singh had no legally married wife, but he had a concubine Dulari Kuer, through whom he had a son Kishori Singh and a daughter Ram Peyari Kuer. It is alleged that on the 16th of December, 1935, Ramdhari executed a registered deed of gift with respect to all the properties in favour of Dulari Kuer and Kishori Singh and placed them in possession of the properties comprised in the document. Ramdhari Singh died in September 1942, and Dulari Kuer died in February, 1943. The properties of Dulari Kuer devolved upon her daughter Ram Peyari Kuer, and after Kishori died on the 3rd of December, 1944, his share also devolved upon Ram Peyari Kuer. Ram Peyari Kuer accordingly came in possession of all the properties, and on the 29th December, 1944, she executed a registered sale deed in favour of the plaintiffs and pro-forma defendants 31 to 35. The case of the contesting defendants was that Ram Peyari Kuer was not the daughter of Dulari Kuer, nor was she born of Ramdhari Singh through Dulari Kuer, that the deed of gift alleged to have been executed by Ramdhari Singh was not acted upon and that Ramdhari Singh continued in possession of the properties and after his death the properties devolved upon Kishori Singh as his heir. It is also said that Kishori Singh was married to Shanti Devi, daughter of Bigan Mistry of Gaya, and that Shanti Devi succeeded to the properties and later on she sold these properties by a registered sale deed to defendants 1st and 2nd parties. The defendants accordingly denied the title of the plaintiffs to any portion of the disputed properties involved in this case.

(2.) The trial court decreed the suit in its entirety, but on appeal the lower appellate court has held that the plaintiffs are entitled to only a half share of the disputed properties and are entitled to joint possession of the half share along with the defendants first and second parties. The lower appellate court also gave a decree for mesne profits to the plaintiffs with respect to their half share with effect from the 27th April, 1946 up to the date of delivery of possession.

(3.) The lower appellate court based its decision upon the following findings of fact. It found, firstly, that Ram Feyari was the daughter of Ram-dhari Singh through Dnlari Kuer and there was a valid gift made by Ramdhari Singh to Duhtri Kner and to Kishori Singh on the 16th of December, 1935. with respect to all the properties. The lower appellate court further found that Shanti Devi was married to Kishori Singh and was his lawfully wedded wife. Upon these findings the lower appellate court held that the plaintiffs had title to eight annas interest in the disputed properties which appertained to Dulari Kuer.