SRI SHAMBHU PRASAD Vs. MAHADEO PRASAD

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for recovery of possession of certain immovable properties. It appears that there were two brothers Ram Rattan and Gajadhar Prasad of whom the former died about the beginning of 1909. He left a daughter Mt. Saraswati whose sons the present plaintiffs are. There was some dispute in the mutation proceedings in which Mt. Saraswati made a statement that Gajadhar Prasad was the heir of the deceased. Gajadhar Prasad's name was accordingly entered in the revenue papers and he got possession. Gajadhar Prasad later on transferred part of the properties on 10 September 1914 to the defendants-appellants. In 1922 Mt. Saraswati died. After her death the present suit was instituted by her sons on 10 May 1928 against the transferees. The plaintiffs case was that the transfer of possession by Mt. Saraswati to Gajadhar Prasad was without any legal necessity and that the transfer by Gajadhar Prasad to the defendants was not binding on them.

(2.) The claim was contested by the defendants on the following grounds: (1) Gajadhar Prasad was joint with Ram Rattan and therefore Mt. Saraswati never inherited any property from her father at all. (2) That Rata Rattan left a son Ram Shankar and the surviving son inherited the estate and that as a result Mt. Saraswati never got the estate. (3) That the defendants were protected under Section 41, of the Transfer of Property Act, and that the claim was barred by time. The Court below has found against the defendants on all these points.

(3.) So far as the question of jointness or separation is concerned there is plenty of evidence on the record which shows that there had been a partition in the family and that Ram Rattan and Gajadhar Prasad were separate. No doubt there was an initial presumption in favour of the defendants that the two brothers were joint but that presumption has been sufficiently rebutted by the evidence which was adduced by the plaintiffs in this case. We think it unnecessary to refer to all the evidence in detail because we are satisfied that the finding of the Court below is perfectly correct. Similarly, the finding of the Court below that it is not proved that Ram Rattan left any sons surviving him is sound. The evidence produced by the defendants to prove that there was a son Ram Shankar who was alive after Ram Rattan died is flimsy and meagre and there is no documentary evidence in support of it. The learned Subordinate Judge has rejected that evidence and we agree with his view.