DOLATSING HAMIRSING Vs. JORAVARSING NARANSING

JUDGEMENT

(1.) The suit out of which this appeal arises is in respect of toda giras hah. The pedigree is given in the judgment of the lower Court.

(2.) The original holder was one Parbatsingji, who died in 1839 leaving two sons, Chhatrasingjee and Jasvatsinghjee. Chhatrasinghji died in 1880, and Jaavatsinghjee died in 1868 leaving a widow Surajba. It appears that the hah was divided between Chhatrasinghjee and Jasvatsingjee, and after his death it was entered in the name of his widow Surajba. It was not divided equally, but in the proportion of Rs. 0-9-6 in a rupee to Chhatrasingjee and the balance to Javatsingjee and his widow. The original plaintiff Bhimsingjee is the son of Chhatrasingjee. Defendant No. 1 is the grandson of Chhatrasingjee, being the son of Jitsingjee, the eldest son of Chhatrasingjee. Defendants Nos. 2, 3 and 4 are brothers of defendant No. 1, defendant No. 6 is the nephew of defendant No. 1, and defendant No. 5 is the son of Naransingjee who was the third son of Chhatrasingjee. The plaintiff is, therefore, the paternal uncle of the defendants.

(3.) The plaintiff alleged that he was the heir of Surajba, and as such he was entitled to recover the toda giras hak of Rs. 500 a year which stood in her name. But he did not make any claim as regards the larger portion of the toda giras hak, which was received by Chhatrasingjee. The first Court, the Second Class Subordinate Judge at Ankleshwar, found that the hak in question was not the property of Surajba but was a toda giras hak, and that it did not descend by primogeniture, but that under the rules relating to inheritance to such haks the plaintiff was entitled to one-third, the other sharers being his nephews the defendants. He granted a declaration in respect of one-third share, but refused his claim for injunction against defendan No. 1 from receiving the amount. It may be mentioned that after the death of Surajba, it was ultimately decided by Government that the Rs. 500 receivable by Bai Surajba in respect of the toda giras hak should be paid to defendant No. 1.