MUSAMMAT LOKIYA Vs. SULLI

JUDGEMENT

(1.) THIS Letters Patent Appeal arises out of a suit brought by the plaintiffs, who are the daughters of one Dangal, for partition of certain moveable and immoveable properties and also for partition of what is known as britjajamani and the books relating thereto. The Court of first instance divided up all the property except the britjajmani in respect of which it held that it was not partible, but it gave the plaintiffs a declaration that they were entitled to a certain share therein. On appeal the District Judge set aside the declaration. On second appeal to this Court that decision was upheld.

(2.) IT appears that the three brothers, Dangal, Punjal and Sikandar, were the owners to the extent of one-third each in this britjajmani. We may note that the present appeal relates only to the latter class of property and the appellants ask this Court to restore the declaration granted by the Court of first instance, Dangal entered into an agreement with the sons of Punjal on 30th of April 1906, under whish (he being an old man) those sons agreed to collect his one-third share on the britjajmani, to retain one-fifth of the income as recompense and to pay four- fifths to Dangal. On his death the four-fifths of Dangal s share was to go one-half to Musammat Kolawati, the widow of Dangal s son, and one-half to his three daughters, and on the death of Musammat Kalawati, the whole of Dangal s share was to be divided into two equal parts; one half was to go to the sons of Punjal and the other half was to go to the present plaintiffs. Dangal also left a Will in favour of his daughters, and it was on that Will and the agreement that the daughters now seek for a declaration of their title to a one-sixth share in the whole of the britjajmani, being half of their father s one-third share. The learned Judge of this Court who dismissed the appeal says in his judgment: "Sikandar was no party to the deed. They failed to show that they have any right to share in the offerings, considering that they take no part in the bathing ceremony. No authority has been cited in support of the contention of the appellants. The appeal fails and is dismissed with costs." The class of property has repeatedly been the subject- matter of decision by the various Courts in India and the rights of the heirs of these Chaubes and other persons, the owners of britjajmani, have repeatedly been upheld, In the case of Sukh Lal v. Bishambhar 37 Ind. Cas. : 661 15 A.L.J. 41 : 39 A. 196 a mortgage of such rights was upheld, and in the case of Narayan Lal Gupta v. Chulhan Lal Gupta 14 Ind. Cas. 677 : 15 C.L.J. 376 the whole subject of these rights was discussed at considerable length by Mr. Justice Mukerji. There is also an unreported decision of a single Judge of this Court in Second Appeal No. 569 of 1903. There can be no doubt that the right of britjajmani has been held by Courts to be heritable and sometimes transferable. In the present case we can see no reason whatsoever why the daughters of Punjal should not inherit the estate of their father in this class of property. If there had been, no Will and no agreement, they would have been entitled to the whole one-sixth share. They claim only a one-third share Sikandar is entitled only to a one-third share in his own right, the sons of Punjal are entitled to a one third in their own right, and one-sixth under the terms of the agreement. As the appellants are satisfied with the declaration of their right, all that is necessary for us to do is to declare that right. We, therefore, allow this appeal and set aside the judgment of this Court and the decree of the Court below and restore the decree of the Court of first instance. The appellants will have their costs in this and the lower Appellate Court.