DHANUKDHARI MANI Vs. MTPIARI

JUDGEMENT

(1.) This appeal arises out of a suit brought by Raghubansman Tiwari, the father of the present plaintiffs-appellants, for a declaration that he was the owner in possession of an 8-pies share in mauza Balahi and of certain plots of ex- proprietary land in the village Dhatura Khas on the allegation that he lived jointly with Paramhansman Tiwari, the husband of Mt. Piari, that Paramhansman had died in the lifetime of his father, and that Mt. Piari was only entitled to maintenance. It was further alleged that the name of Mt. Piari had been entered in the revenue papers for her consolation, that 4 bighas 12 dhurs of ex-proprietary land in the village Dhatura Khas was set apart for her maintenance and that she had wrongfully transferred a portion of the property, standing in her name, to the defendants Sheomohanmani Tiwari and Sheomohanmani Tiwari, without any legal necessity. The defence was that Paramhansman Tiwari, the husband1 of Mt. Piari lived separately from the plaintiff, that the transfers in question were made for legal necessity, and that as the daughter of Mt. Piari was alive, the plaintiff had no right to sue.

(2.) The Court of first instance found that Raghubansman Tiwari was living separately from Paramhansman Tiwari, that the property in dispute was originally their ancestral property and had passed out of the family by virtue of an auction sale to a person named Ganga Sahu, from whom it was subsequently obtained by gift by Raghubansman Tiwari and Paramhansman Tiwari jointly, and that though the transfers in question were not made for legal necessity, the plaintiff was not entitled to any relief because the daughter of Mt. Piari was alive.

(3.) During the course of the hearing of as appeal from that decree it transpired that the matter in issue between the parties-had already been dealt with adversely to the plaintiff in a partition proceeding, to which the present plaintiff and Mt. Piari were parties. An issue was therefore remitted to the Court of first instance to ascertain whether Section 111 of the U.P. Land? Revenue Act barred the plea raised by the-defendants. The Court of first instance-found on the evidence then adduced that. Section 111 of the U.P. Land Revenue Act did not bar the defence either as regards the zamindari share or the tenancy land in suit. That finding was upheld by the lower Appellate Court, which also came to the conclusion that the property in dispute was no longer the joint family property of Raghubansman Tiwari and Paramhanaman Tiwari, and that they were separate at the time of the death of the latter.