MT KISHAN DEI Vs. SHEO PALTAN

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for recovery of possession. The plaintiff had a brother Paltu, who died some six years ago. He married a woman named Mt. Mano and executed a deed, dated 29 January 1904, under which he stated that he had installed her in his house (apne ghar men baitha lia hai) and made a Will that after his death she would inherit the whole estate and that his brothers would have no right. There was a further provision that if he were not to keep her he would pay her Rs. 10 a month regularly. In his lifetime, however, he executed a deed of gift, dated the 29 of April 1917, under which he transferred the property in dispute to Mt. Mano. The validity of this deed is accepted by the plaintiff and he admits that the property thereafter became the stridhan property of Mt. Mano. Paltu died in 1919, and it was a part of the plaintiff's case that after his death there was an agreement between him and Mt. Mano as well as some other relations that she would remain in possession of the property for her life and after her death the plaintiff and his brother would get it. Apart from this agreement the plaintiff claimed to be the heir of Mt. Mano, who died on the 16 of April 1921 leaving no issue. The defendant is the mother of Anand Prakash who was the son of Nathu Singh, a brother of Mt. Mano. The defendant denied that the plaintiff was Mt. Mano's heir, and pleaded that she having been married in karao form her heirs were her relations in the paternal line. It was further pleaded that before her death she had executed a Will dated the 14 of April 1921 under which she had bequeathed the property in favour of Anand Prakash.

(2.) The Court of first instance found that the alleged agreement was not established. It found that the marriage of Mt. Mano had been a widow re-marriage in the karao form. It came to the conclusion that her marriage could not be said to have been in the Brahma form and that, therefore, the plaintiff was not her heir. It, therefore, dismissed the suit considering it unnecessary to go into the question of the alleged Will. On appeal the learned District Judge has affirmed the finding that the agreement has not been established and has also affirmed the finding that Mt. Mano's marriage had been in the karao form. He, however, came to the conclusion that it must be presumed that her marriage was in the Brahma form and that, therefore, the plaintiff was the legal heir. He has accordingly remanded the case in order that the other issues may be disposed of.

(3.) The argument of Dr. Katju on behalf of the appellant may be summarized as follows: It is an essential feature of the Brahma form of marriage that there should be a gift by the father or other legal guardian of the girl and that as on the first marriage she passes into a new gotra her paternal relations have no longer any right left to give her away a second time. His contention, therefore, is that a widow re-marriage can never be a Brahma form of marriage. He argues that unless the plaintiff establishes that the marriage was in one of the four approved forms he cannot succeed. He contends that a karao form of marriage does not come within the definition of any of the first four forms and that in fact about the time when the Mitakshara was written re-marriages were obsolete and, therefore, not in contemplation.