LAKSHMI NARAIN MISIR Vs. MUSAMMAT SUMARTI KUNWAR

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for recovery of possession. Both the courts below have dismissed the claim.

(2.) The property in dispute belonged originally to one Kesri Mal alias Kesri Singh, who admittedly died some time before the mutiny. On his death he left a widow Musammat Chunno and two daughters Musammat Durga and Musammat Cheno and also a sister's son Baijnath. Before his death. Kesri Mal is said to have executed a document, dated the 28 of January, 1838, the genuineness of which was challenged by the plaintiffs in the courts below. Both the courts below, however have found that this was a genuine document and that finding is a finding of fact. 2. The terms of this document are admittedly very vague and ambiguous. We have had the original read over to us and there can be no doubt that the language of this document is at places ungrammatical and not quite clear. On the whole, however, I do not find it possible to differ from the interpretation put on it by the courts below. What the lower appellate court has understood this document to mean is as follows: The testator made a bequest of his property in favour of four persons, his widow, his two daughters arnd his nephew Baijnath in four equal shares. There was a provision that in case either of the daughters had a son born he would get the property (of the two daughters). In case of there being no son born to the daughters that property would go to the nephew Baijnath and his heirs.

(3.) It is not disputed that on the death of Kesri Mal his widow did not take possession of any definite portion of this property, but the entire estate was divided in the ratio of one-third each between Baijnath and the two daughters. I may here mention that one of the arguments put forward before us was that it must be assumed that the widow Musammat Chunno had made a gift of her interest in favour of her daughters and Baijnath. As to this the learned Judge has remarked that there is no evidence in support of it and he has refrained from drawing this inference from the mere fact that there was no mutation of names in favour of Musammat Chunno. The case of a gift by Musammat Chunno not having been put forward in the pleadings, we cannot make any such assumption in favour of the respondents. It may therefore be taken for granted that for some reason or other Musammat Chunno did not take possession of the one-fourth estate to which she was entitled under the will. Musammat Chunno died shortly after Kesri Mal and on her death a two-third share remained in possession of her daughters Musammat Cheno and Musammat Durga, while the other one-third share remained in possession of Baijnath. Musammat Durga died some 40 years ago. During the lifetime of the two daughters a son named Bhagwan Das was born to Musammat Cheno; and Har. Charan Das, whose widow Musammat Sumarti Kunwar is defendant No. 1, Was the son of this,Bhagwan Das. In 1907 Musammat Cheno's son Bhagwan Das died. After his death Musammat Cheno executed a deed of gift of the property which had remained in possession of herself and her deceased sister Musammat Durga, in favour of her grandson Harcharan Das. Musammat Chandan Kunwar, the mother of Harcharan Das acting as his guardian, then transferred this gifted property to Shib Charan Das, defendant No. 3. On the other hand, Baijnath's grandson Shib Charan and grand-daughter Musammat Lareti are said to be in possession of the one-third share which he had got under the will.