JAS KUNWAR Vs. PEMA

JUDGEMENT

(1.) The facts out of which this appeal arises arc as follows: Mohan Singh was the owner of some zamindari property. He had three sons, Prem Singh, Gaila and Pema. Prem Singh died in the life-time of his father, leaving surviving him a widow, Musammat Jas Kunwar (plaintiff respondent). After the death of Mohan Singh, his property was recorded in the names of Gaila, Musammat Jas Kunwar and Pema. Subsequently Gaila died and the names of his widow and sons were recorded in the khewat instead of his own name. On the 13th of November, 1911, Musammat Jas Kunwar instituted a suit in the Revenue Court for imperfect partition in respect of a one-third share of the property which had originally belonged to Mohan Singh, stating in her plaint that she was "the owner, zamindar and co-sharer of one-third out of one-fourth share in the holdings bearing khewat Nos. 22, 23 and 33 in mauza Nehru," and was in possession thereof. The reason for seeking partition, she alleged, was because there were constant disputes between the parties owing to the property being joint. Pema, defendant appellant, objected under Section 111 of the Revenue Act, on the ground that Musammat Jas Kunwar s name had been entered in the Revenue papers merely for her consolation, and that she was not in possession as a co-sharer, but had been receiving maintenance only, and that was all that she was entitled to.

(2.) The first court framed, among others, two issues, as to the entry of Musammat Jas Kunwar s name in the khewat and as to her possession. That court decided both these issues in the plaintiff s favour and disallowed Pema s objection. On appeal the learned District Judge found as follows:

(3.) "It appears that Musammat Jas Kunwar has been in possession of her husband s share, and I find accordingly. As her husband predeceased her father-in-law, it appears that she was allowed her husband s share on her father-in-law s death, in lieu of maintenance and by way of consolation and she was recorded at Mohan Singh s death as a co-sharer. She is entitled then to partition of the share recorded in her name. It is clear that Musammat Jas Kunwar has not absolute ownership." He dismissed the appeal.