CHULHAN BARAI Vs. MTAKLI BARAINI

JUDGEMENT

(1.) This case comes before me in second appeal from a decision of the District Judge of Gaya. It raises a point of law of succession and it is important to realize the position of the parties. With an addition which I shall specify the genealogical table which affects the case is set forth in the original judgment of the Munsif. The common ancestor of the plaintiffs and the defendant was one Meghan Barai. He died long ago and left two sons Nasib Barai and Bala Barai. Nasib Barai was the father of plaintiff 1 and plaintiff 1 is the father of the other plaintiffs. Bala Barai had two sons. With the eldest we are not concerned. The second son Jatoo was married to one Mt. Akli who is still alive and is defendant 1. After the death of Jatoo Barai his widow married his younger brother Akhaj Barai.

(2.) The offspring of that marriage was a daughter named Gauri and a son named Mathura. Gauri had three sons and one daughter. Mathura died at some date which has not bean determined but at any rate before 1927. The plaintiffs brought a suit against the defendant in which they sought to impugn a mortgage deed which had been executed by her and they impugned it on the usual grounds that there was no legal necessity. The finding of the lower Court was that in fact the deed -was for no legal necessity and holding that the plaintiffs were the next heirs after Mathura's decease the first Court decreed the suit.

(3.) The defendant then appealed to the District Judge and by the time the appeal came before him Act 2 ot 1929 had come into force. The effect of that Act is shortly that a sister's children take the estate in preference to a father's father. The Act was brought to the notice of the District Judge and he remanded the case to the Munsif with a direction to inquire whether as a matter of fact Mathura deceased had a sister and whether that sister in turn had had offspring. The Munsif having conducted the necessary inquiry reported that such was the fact.