MUSAMMAT BATKA Vs. MUSAMMAT SITMAN

JUDGEMENT

(1.) This is an appeal from, an order of the Additional Judge of Gorakhpur modifying a decree of the Additional Subordinate Judge of that District. The facts of the case are that one Achhaibar died leaving a widow Musammat Gulzarj and two daughters Musammat Lanji and Musammat Batka. Musammat Gulzari succeeded to her husband's estate which consisted of shares in two villages Katarua and Baldiha. She executed a deed of gift in respect of the Katarua property in favour of her two daughters in equal shares and their names were entered accordingly in the revenue papers.

(2.) The share in Mauza Baldiha had been mortgaged by Achhaibar. After the death of their mother the two daughters redeemed this mortgage, paying equal shares of the mortgage-money. On the 15 August, 1918, Musammat Lanji died, and after some litigation in the Revenue Courts the name of her daughter-in-law, Musammat Sitman, was recorded as proprietor of half the property in both the villages. The suit out of which this appeal arises was brought by Musammat Batka against Musammat Sitman for recovery of possession of one-half the property in both Katarua and Baldiha and for mesne profits.

(3.) The plaintiff's case was that on the death of her sister Musammat Lanji she was the only surviving heir of her father Achhaibar. The defence so far as Mauza Katarua was concerned was that the plaintiff had consented to the deed of gift executed by their mother under which each daughter had obtained a half share in the property, and was now debarred, from bringing a suit with regard to it. The Baldiha properly had been redeemed by the two daughters jointly, mutation had been effected in the names of their sons against their respective shares and the plaintiff was not entitled now to disturb this family arrangement. The First Court held that the plaintiff's consent implied by her taking the share of the property conveyed to her under the deed of gift did not amount to such a ratification of the transfer as would debar her from suing as soon as the succession opened. He, therefore, found that as the plaintiff had failed to prove that the share of the mortgage-money for Baldiha had been paid out of the profits by Musammat Lanji the plaintiff was bound to re-pay it to her and on doing this was entitled to a decree.