RAMU Vs. KASHI

JUDGEMENT

(1.) This is a first appeal by the defendant in a suit for recovery of. possession of certain property described in the plaint. The parties describe themselves as Doms Ghota Khor and the property in suit consisted of a grove and certain houses in Benares City besides some other miscellaneous property including turns at certain burning ghats situated in Masan Mankarnika Ghat and Harish Chandra Ghat, Benares City, as also at Rameshwar in the same district and certain ghats in the Ghazipur district, the whole property being valued at Rs. 48,000. The plaintiffs alleged that the defendant Ramu was in possession of this property as a trespasser and claimed that they were the next reversioners of the last owner Sital, who had died childless in July 1934, upon the death of Sital's widow who died on 18 May 1935. The suit was instituted on 5 September 1935, the plaintiffs founding their claim upon the following pedigree:

(2.) The defendant Ramu took a number of defences. He alleged the pedigree put forward by the plaintiffs to be fictitious and wrong and he put the plaintiffs to the proof of their pedigree. He next contended that Sital was a Koeri by caste and entered into adverse possession of such property as was left by Gulab and himself acquired more, so that he was ultimately the proprietor of all the property left by him either by adverse possession or by reason of it being his own acquisition. The plaintiffs, it will be noted, had filed their suit on the assumption that Sital was the real son of Gulab, but at a later date, 20 April 1936, the plaintiffs admitted him to have been adopted son of Gulab Dom and contended that the adoption was valid and that as a result Sital himself became a Dom. The defendant further pleaded that Sital on 4 January 1918 executed a will under which Mt. Jasoda upon his death became absolute owner of the property. He alleged that Mt. Jasoda on 12 May 1935, that is a week before her death executed a will in the defendant's favour. In addition, he put forward a plea that he was the adoptive son of Sital and therefore owner of the property. Lastly, he put forward in rather a vague fashion a contention that even if there had been no such adoption and the will of Mt. Jasoda were to be rejected, even then he was the nearest stridhan heir of Mt. Jasoda. The learned civil Judge framed the following issues: (1) Whether the plaintifls are reversioners of Sital? (2) Could there be any legally valid adoption of Sital by Gulab, and whether Sital was a Dom or a Kunbi and could, not be adopted if he was a Kunbi? (3) Was the defendant Bamu adopted by Sital, if so, with what effect? (4) Did the will of (Sital) dated 4 January 1918 confer only a limited life estate on Mt. Jasoda? (5) Is the will (of Mt. Jasoda) dated 12 May 1935 genuine and effective and does it confer any title to the property in suit on the defendant? (6) Were the properties in suit stridhan properties of Mt. Jasoda, if so, is the defendant alone entitled to succeed to those properties?

(3.) Upon these issues the learned civil Judge arrived at the following findings. He held that the plaintiffs had succeeded in establishing the pedigree put forward by them and that they were therefore the collaterals and reversioners entitled to the estate of Sital upon the death of Mt. Jasoda. The finding upon this issue has been strongly contested on behalf of the appellant Ramu. Upon issue 2 he held that Sital was a Kunbi but that by his adoption by Gulab he became a Dom, the adoption being a valid adoption. The finding upon this issue has not been contested in the appeal. Upon issue 3 he held that the adoption of Ramu was not established and that, in fact the theory of adoption was an after thought on the part of the defendant. Learned Counsel has mentioned this issue but he has scarcely sought to argue that the finding is incorrect. The reasons given by the Court below for arriving at its finding are quite convincing. According to his story, Ramu was adopted by Sital as far back as 1910 or 1911 and continued right up to the death of Sital to live in Sital's house and to be kindly treated by him but if Sital had actually adopted the defendant, it is difficult to understand why he should in 1918 have disinherited him and executed a will in favour of Mt. Jasoda. Moreover, it was the defendant's own case that Mt. Jasoda executed a will in his favour but even in that will Ramu was described not as the adoptive son of Sital deceased but as the son of his natural father Mangru. Upon issue 4 as to the nature of the estate conferred upon Mt. Jasoda by Sital under his will, the learned Civil Judge held that it was quite clear upon a comparison of the latter part of this document with the earlier part that nothing more than a life interest was conferred upon Mt. Jasoda. This finding has been strongly contested before us. Upon issue 5 the learned Civil Judge held that the will of Mt. Jasoda propounded by the defendant could not be accepted. He held that the will was defective on four grounds, namely : (1) that the story of its execution by Mt. Jasoda could not be believed; (2) that on the evidence she was unconscious on the date of the alleged execution, that is, she was not possessed of a sound disposing mind; (3) that even if she was of sound mind, she had no independent advice and U) that contrary to the terms of the will of Sital deceased she executed the will without the consent of Chandar, one of the managers of the estate. Learned Counsel for the appellant, although ho mentioned this issue in his argument, did not attempt to contest the correctness of the finding. Lastly upon issue 6 the learned Civil Judge held that the defendant had failed to prove the pedigree put forward by him and to establish that he was a relative of Mt. Jasoda on her father's side. Accordingly even if it were to be assumed that as a result of the will of Sital the property in suit came into the hands of Mt. Jasoda as her stridhan, the defendant could not be entitled to the property as stridhan heir of Mt. Jasoda. As regards this finding the learned Counsel for the appellant Ramu has put forward the contention that if this Court should come to the conclusion that the property in suit passed from Sital to Mt. Jasoda as her stridhan, the plaintiffs are not entitled to recover possession of the property in the present suit because they have not established those factors whose presence is necessary to make them the heirs of Mt. Jasoda. It was necessary, he contends, for them to show that the property was of such a nature and came to Mt. Jasoda in such circumstances (that is by virtue of such a marriage) as would make the succession to it go through the father of Mt. Jasoda and not to the heirs of Sital. Upon the findings at which we have arrived in the present case, that question does not arise.