CHHITTAR KUNWAR Vs. GAURA KUNWAR

JUDGEMENT

(1.) The appellant, who is one of the two widows of one Madan Mohan Lal, brought the suit out of which this appeal has arisen against the other widow of the aforesaid deceased, for a declaration that the defendant, being childless, was only entitled to maintenance and had no right to have the zamindari villages belonging to her deceased husband, partitioned between the two widows. It appears that Madan Mohan Lal died sometime in the year 1909, leaving two widows, who are the parties to this suit. The plaintiff has a daughter, but the defendant has no issue. The names of both the widows, were entered in the revenue records. The defendant applied to the Revenue Court for partition of a half share. The plaintiff objected and was referred to the Civil Court. Thereupon she instituted the present suit. She put forward her claim on two grounds ; first, that under a custom prevailing among kurmis, to which caste the parties belong, a childless widow only receives maintenance and has no right to the estate of her husband ; and secondly, that under the general Hindu law a widow cannot claim a partition.

(2.) The court below has dismissed the plaintiff s claim, being of opinion that the custom alleged "had not been proved and that as both the widows inherited the property of their husband, they were entitled to joint enjoyment of the property and to divide it between themselves for the purpose of such enjoyment.

(3.) The plaintiff has preferred this appeal, and her first contention is that the custom alleged by her is proved. We are of opinion that this contention has no force. A number of witnesses were examined, who spoke generally as to the existence of the alleged custom, but with the exception of one witness none of the others was able to refer to any instance in- which a childless widow was excluded by another having a female child. The only instance which was referred to was that of Hori; but one instance does not establish a custom. The wajib-ul-arzes of some of the villages were referred to. Some of these wajib-ul-arzes are declarations made by a single owner ; and even according to these wajib-ul-arzes, it is manifest that where a widow has a male child, that male child excludes the widow and the childless widow has only a right to receive maintenance from the son. In the original wajib-ul-arzes the vernacular word used is aulad (issue) but judging by the context it is manifest that this word was meant to apply to male issue only.