MST AMBA Vs. AIDAN

JUDGEMENT

(1.) THIS is a second appeal by Mst. Amba against a decree of the Additional District Judge No. 1, Jodhpur. A preliminary objection has been raised that the appellant has no right to appeal. The facts which are necessary for the decision of this preliminary objection are these. Aidan, plaintiff-respondent, brought a suit for ejectment of Mst. Amba and Mst. Sita from a house and also for arrears of rent. His case was that Mst. Amba's husband Aibux and Mst. Sita's husband Ambalal were cousins and members of a joint Hindu family and Aibux was the Karta. Ambalal died in the lifetime of Aibux and thereafter, his widow Mst. Sita lived jointly with Aibux. After Ambalal's death Aibux as Karta of the family borrowed some money from the plaintiff and made a usufructuary mortgage of the house in dispute on the 29th of March 1917. The possession of the house was transferred to the plaintiff and Aibux thereafter took the house on rent at Rs. 9/- per year on 31st of March 1917 and executed a rent-note in plaintiff's favour. Aibux paid the rent only for one year. He died sometime afterwards and the plaintiff's suit was brought against the two widows as the legal representative of Aibux.

(2.) MST. Amba appellant did not appear in the trial court and the suit proceeded ex parte against her. MST. Sita contested the suit on two grounds. In the first place, it was urged that Aibux and Ambalal were separate and Aibux could not mortgage Ambalal's half share in the house and, therefore, MST. Sita was in possession of half the house in her own right as owner and could not be ejected. Secondly, it was urged that the tenancy created by the rent-note was a tenancy at will which came to an end on the death of Aibux and no suit for arrears of rent and ejectment based on the rent-note could be maintained.