ADIT NARAYAN SINGH Vs. MAHABIR PRASAD TIWARI

JUDGEMENT

(1.) The suit in which this appeal has arisen Was brought on the 22nd April, 1911, by Mahabir Prasad Tiwari, who is the respondent to this appeal, against Adit Narayan Singh, who is the appellant here, and others, who were not necessary parties. Is a suit for the possession of Mauza Bariapur, in the District of Patna. The Mauza is in the possession of the defendant- appellant under a usufructuary mortgage for Rs. 200 which was granted to him on the 1st September, 1902, by Monakka Kuar, the widow of Dhanukdhari, who was a separated Hindu of a family governed by the law of the Mitak-sharaandat his death was proprietor of the Mauza. He died about 1866 without issue. His widow, Monakka Kuar, died on the 13th September, 1902. She had power as a Hindu widow to grant the usufructuary mortgage. The heir of Dhanukdhari at his death or his successor-in-title was when this suit was brought entitled to possession of the Mauza on payment to the defendant-appellant of the Rs. 200 mortgage money. The plaintiff, on the 1 September, 1908, purchased such right, title and interest as Devaki Nandan Tiwari and his brothers had in the Mauza. They were the sons of Hanuman, who was living when Monakka Kuar died but had died, before the purchase. The question of title on which this suit depends is whether Hanuman was at the time when Monakka Kuar died, the heir of her deceased husband Dhanukdhari. If Hanuman was not then the heir of Dhanukdhari, no title to the Mauza passed to the plaintiff by the purchase from his sons, and it is established in this suit that the plaintiff had no other title. As the defendant appellant was in possession it was for the plaintiff to prove a title to the possession of the Mauza.

(2.) The case for the defendant-appellant was that on the death of Monakka Kuar, the heir of Dhanukdhari was not Hanuman, and was either Jagdeo or Rajendra. The following short pedigree will show the relationship of Dhanukdhari, Jagdeo, Rajendra and Hanuman to each other.

(3.) The Trial Judge considered that it was not proved that Jagdeo was living when Monakka Kuar died. It was for the plaintiff to prove that Jagdeo had died in the life-time of Monakka Kuar. The High Court found that Jagdeo had died before Monakka Kuar. Having regard to these findings their Lordships assume that Jagdeo had died before Monakka Kuar.