JWALA PRASAD Vs. JANKI KUAR

JUDGEMENT

(1.) This appeal and the connected First Appeal No. 231 of 1906 See 7 Ind. Cas. 908, infra arise out of a suit brought by Musammat, Duni Knar for possession of property which she alleged she had inherited from her son Gurdyal. She was the widow of Tewari Jwala Prasad who died in 1869, leaving him surviving his Widow Duni Kuar, two sons Kalka Prasad and Gurdyal, and a daughter Laraiti Knar who is one of the appellants in the connected Appeal No. 231. Jwala Prasad was one of the three sons of Kushal Singh, the other sons being Daryao Singh and Umrao Singh. Daryao Singh had a son Jaswant Singh but with his branch of the family we are not concerned in this appeal. Umrao Singh's son was Gandharp Singh and it is asserted by the appellant Jwala Prasad that he was adopted to Gandharp Singh. In first appeal No. 173 of 1908, decided on the 15 of December, 1909, we held for the reasons stated in the judgment in that case, that Jawala Prasad was validly adopted. For the same reasons we hold in this case that he was so adopted and must be treated as the adopted son of Gandharp Singh. Of the sons of Tewari Jawala Prasad, Kalka Prasad died on the 23 of April, 1893, leaving a widow Janki Kuarwho is the principal defendant in this case. Gurdyal Singh died about 4 months afterwards, that is, on the 7 of August, 1893, his widow Musammat Raniji died in 1899. The pedigree of the family is thus set forth in the judgment of the Court below:

(2.) The suit which has given rise to this and the connected appeal was brought by Duni Kuar on the allegation that the two brothers Kalka Prasad and Gurdyal Singh were members of a joint family; that upon Kalka Prasad's death Gurdyal by right of survivorship succeeded to the whole of the property; that after his death his widow inherited it and upon the widow's death she, Duni Kuar, as his mother inherited it. She asserts that Janki Kuar had no interest in the said property and that she is in unlawful possession of a half share. Duni Kuar accordingly prayed for a declaration that Gurdyal and Kalka Prasad were members of joint family and that she is by right of inheritance to her son Gurdyal the owner of that property and she claimed possession of a half share of the property now in the possession of Janki Kuar The plaint contains an allegation to the effect that if it was found that a partition had taken place between the brothers, she as the mother of the two brothers obtained a third share under the partition and was, therefore, entitled to recover from the defendant Janki Kuar, a sixth share of the property being the difference between a third share and a fourth share of which she, Duni Kuar was in possession. Accordingly in the alternative she claimed possession of a sixth share. There were other prayers in the plaint to which we need not refer for the purposes of these appeals.

(3.) The Court below held that the two brothers Kalka Prasad and Gurdyal were separate, that Janki Kuar inherited a half share of the property being the share of her husband, that Duni Kuar got no share under partition and that her claim to a third share is not maintainable and is also barred by limitation That Court accordingly dismissed the suit on the 7 of February, 1906, Duni Kuar having died after the decision of the suit, that is on the 18 of April, 1906, this Appeal No. 73 of 1910 has been preferred by the minor Jawala Prasad and he claims as the adopted son of Gandharp Singh to be the next reversioner to the estate after Duni Kuar's death. The connected Appeal No. 231 of 1906 has been preferred by Musammat Laraiti Kunwar, the daughter of Duni Kuar, and her sons on the allegation that Duni Kuar obtained a share in the property under a partition between her sons; that the property so acquired was her .stridhan and that it passed on her death to her (Laraiti Kuar).