MUSAMMAT MAHADAI KUAR Vs. BAGESHAR RAI

JUDGEMENT

(1.) The facts of the suit cut of which this appeal arises have been set out clearly in the decision of the Court below. The findings are that the plaintiff is the legitimate daughter of Ram Din and that the property in dispute is property to which Ram Din became separately entitled under the provisions of the deed of partition, dated the 5 of March 1902. The lower Appellate Court hat refused relief to the plaintiff on the ground that she was excluded from inheritance by the provisions of the partition deed itself and has found in favour of the title of Ram Din's collaterals. We thus have it that Ram Din, as a Hindu not belonging to a joint family, had full proprietary title to the property in suit and that ordinarily the property would descend on his death to his daughter, he having no other heirs. In order to arrive at a different conclusion, it is necessary on the facts to find that not only does the deed of partition exclude the daughter, but that such exclusion is effective. I have made the following translation of the paragraphs of the deed which have a bearing on the question. This translation is as follows: (a) Out of the executants if any ore desires or finds it necessary to transfer his property, he should transfer such property, being his divided share, to his near co-sharer, but if sash so sharer refuses to take the property then the person wishing to make the transfer may, after obtaining the written consent of his co-sharers, transfer the property to a stranger. (b) If any co-sharer dies lawland, the property left by him shall be divided amongst his near so sharers according to their shares. No co sharer shall have a right to receive anything more than his proper share in the property left by the deceased. (c) No co sharer shall have the right of creating title in favour of a daughter's son in his divided share directly or in-directly.

(2.) Paragraph (a) is a contract creating a right of pre-emption amongst the parties to the partition and is in no way objectionable.

(3.) In paragraph (6) I agree that the translation of "lawalad" should be "without male issue." That is the usual meaning of the word and I agree with the lower Court that the distinct exclusion of a daughter's son affords additional reason if additional reason be required, for accepting this meaning of the word. What then does paragraph (6) lay down? It is a distinct ouster of the ordinary law of inheritance inasmuch as it excludes female issue and their descendants. Farther, this paragraph ousts the law of succession of collaterals, for, ignoring the precepts of the Mitakshara it directs that on failure of a co-sharer's issue the property shall not devolve according to the law, bad shall be divided amongst the remaining co sharers according to their shares.