NATHU LAL Vs. BABU RAM

JUDGEMENT

(1.) The plaintiffs, on 22 March, 1927,sued the defendants in ejectment to recover possession of certain zemindary property and a share in a house (haveli). The defendants had obtained mutation of names from the revenue authorities on the death of Mt. Naraini who held possession during her lifetime. Plaintiff 1, Nathu Lal, is the only son of a brother of Mt. Naraini's husband, and as such he is admitted to be the only person entitled to succeed to any estate of which she was full owner as distinct from estate held by her as a limited owner. The second plaintiff is a purchaser from the first and has been joined as such. The defendants, four in number, are sued as being the persons in possession of the property claimed, but the title under which they defend their possession is that they are the reversioners of Jai Sukh Ram, Mt. Naraini's father. From the pedigree which has been prefixed to this judgment it will be seen that they are the sons of Mt. Mullo, a sister of Naraini. When Naraini died in 1923 both her sisters had predeceased her.

(2.) The question for decision is whether or not Mt. Naraini owned the property in suit absolutely and the plaintiffs suing in ejectment have to recover on the strength of their own title. Their claim is that Naraini had absolute right by reason that on 25 April 1905, her mother, Mt. Jamna, being absolutely entitled, executed a deed of gift to her daughters of certain property in unequal shares, seven annas being given to Mt. Mullo, six annas to Mt. Ram Dei and three annas to Mt. Naraini. The property in suit is the property which by this deed was conveyed to Mt. Naraini; and as there is no doubt that Mt. Jamna purported by the deed to convey an absolute right, the question for decision in the present suit is whether or not the property was held by Mt. Jamna for an absolute estate or for a limited estate. The exact date of the death of Mt. Jamna does not appear, but it is conceded that she predeceased her daughter Naraini. If in the property in suit Mt. Jamna had only the limited estate of a Hindu woman, or only a life interest, the plaintiffs' claim to recover the property fails. The plaintiffs seek to make out their claim in the following way : It is the plaintiffs' case that when Ji Sukh Ram died in 1891 he was a member of a joint Hindu family of which he and his elder brother Ram Sahai were members. Ram Sahai had a son called Shiam Lal, but on the death of Ji Sukh, Shiam Lal, who was a minor, alleged that Ji Sukh had adopted him in his lifetime. Mt. Jamna claimed to be the heir of her husband. Ram Sahai claimed that, he being joint with Ji Sukh, the whole of the property of Ji Sukh passed by survivorship and that his widow took nothing by inheritance. In these circumstances a dispute arose before the revenue authorities and was being taken on appeal to the Collector, the question being whether Ram Sahai, Shiam Lal or Mt. Jamna was entitled to be recorded as proprietor. Ram Sahai's case was that there was no occasion for any partition of the property of which he and his brother had been in joint possession Mt. Jamna's case was that a partition was necessary in order to put her in possession of her husband's share as representing her husband's estate. These disputes between Ram Sahai and Mt. Jamna were referred to the arbitration of five arbitrators by written instrument dated 8 February 1892, and by an arbitration award dated the next day and signed by both parties in token of acceptance, the arbitrators, finding that the joint property was worth Rs.40,000, and that the debts due therefrom amounted to Rs.6,000, divided it between Ram Sahai and Musammat Jamna in unequal proportions. They gave the lady lands worth Rs. 10,000 and the eastern half of the dwelling house. Upon this, the plaintiffs' case is that Ram Sahai and Ji Sukh were joint, that the whole property passed by survivorship to Ram Sahai; that under this award the property given to Musammat Jamna was given to her for an absolute estate, so that Naraini took an absolute estate from her mother by the deed of 1905, accordingly that the plaintiffs are entitled, and the defendants, as reversioners of Ji Sukh, have no claim.

(3.) The trial Court found that the plaintiffs had established this case and its decree was confirmed on appeal by the Additional District Judge. On second appeal by the defendants to the High Court at Allahabad these decisions were reversed and the plaintiffs' suit was dismissed on the view that as Musammat Jamna's only claim at the time of the death of her husband Was to inherit from him, she could not afterwards claim to hold the property adversely to her husband's estate or to have an absolute right therein. The first question for consideration is whether the interest of Ji Sukh passed by inheritance or passed by survivorship to Ram Sahai. The evidence upon which the trial Court found that Ji Sukh and Ram Sahai were members of a joint Hindu family was, first of all, an instrument of partition executed by Ram Sahai and Ji Sukh as to one part, and by their younger brother Sita Ram as to the other part on 17 April 1873. It is common ground that at this date the father of these three brothers, by name Buddhi, was alive. Indeed he is one of the persons signing the instrument as witnesses. It is not disputed that the property partitioned by this instrument was property which had been acquired by the three brothers, there being no evidence that their father at any time had property or had any share in the property comprised in the instrument. The family were liquor sellers by caste and the three brothers were engaged in business of this character. By the deed of 1873 certain specified property consisting of houses, shops, and zamindary property, is stated to have been owned by the three brothers, and specified items are allotted as the share of Sita Ram, other items being allotted in one share to Ram Sahai and Ji Sukh jointly; that is to say, the property is partitioned into two shares, one going to Sita Ram and the other to his two brothers. The instrument contains the following provision: