RAJ DEO SINGH Vs. MTJANAK RAJ KUARI

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for recovery of possession of the estate of Basdeo Singh whose daughter, the plaintiff, Mt. Janak Raj Kunwari, claims to be. The suit was filed on 18 December 1929, and the age of the plaintiff given in it was 16 years and 8 months. The plaintiff denied that Basdeo Singh had loft any posthumous son as had been found by the revenue Court on a previous occasion, and alleged that the other two daughters of Basdeo Singh were dead. On behalf of the defendants it was denied that the plaintiff was the daughter of Basdeo Singh and a positive case was set up that she was the daughter of one Ram Kishun Singh. The main question in the case was whether Mt. Janak Raj Kunwari was the daughter of the deceased Basdeo Singh. The learned Subordinate Judge has come to the conclusion that the plaintiff's evidence is reliable and has rejected the defendants evidence, and has accordingly decreed the claim. This finding is challenged in appeal on behalf of the defendants. So far as the plaintiff is concerned her case has been consistent throughout. After the death of Mt. Jageshra Kunwar, the widow of Basdeo Singh, which took place in 1926, there was a proceeding in the mutation Court in which both the present plaintiff as well as the contesting defendants appeared. The plaintiff there also put forward the case that she was the surviving daughter of Basdeo Singh.

(2.) The defendants no doubt denied this fact but do not appear to have set up any positive case at that time that the plaintiff was the daughter of Ram Kishen Singh: at least this does not appear to be so from any documents which have been brought to our notice. The revenue Court came to the conclusion that the plaintiff was the daughter of Basdeo Singh, but that the latter had left a posthumous son who succeeded to the estate and that on his death Basdeo's mother, Mt. Manhasi, became entitled to the estate as a Hindu mother and the present plaintiff was not an heir at all. The learned Assistant Collector pointed out that Mt. Manhasi Kunwar was apparently trying to favour her granddaughter and was keeping behind the scene and not setting up her rights. Nevertheless he ordered that the name of Mt. Manhasi should be entered in place of Mt. Jageshra Kunwar's name. When the plaintiff was examined in the civil Court on 4 February 1931 she was identified by her own maternal uncle Lachhmi Rai as Mt. Janakraj Kunwari, daughter of Basdeo Singh. On the other hand, the defendant Jagdeo Singh also saw her and identified her as the daughter of Ram Kishun Singh and gave her name as Mt. Sukhia. At that time no other name was suggested by the defendants. In the cross-examination also there was nothing to show that she was Mt. Makhni, daughter of Ram Kishun Singh. At . any rate, no clear question was put to her in cross-examination.

(3.) Before identifying the plaintiff as the daughter of Ram Kishun Singh, the defendants had produced a copy of a birth register, which showed that a daughter had been born to Ram Kishun Singh in 1910 and apparently it was suggested that the plaintiff might be that daughter. After she had been identified by the defendant as Mt. Sukhia, daughter of Ram Kishun Singh, the plaintiff produced a copy of a death register showing that the daughter of Ram Kishun, who might have been born in 1910, died subsequently. We then find that the next day, on 5 February 1931, the defendants filed an application for a certified copy of an entry in a District Board school register. The copy was ready on 6 February 1931 and was filed in Court on 19 February 1931 (1930 is a mistake in the endorsement). On 23 February 1931 the defendants filed an application stating that Jagdeo Singh had made a mistake in naming the plaintiff as Mt. Sukhia, daughter of Ram Kishun Singh, and that in point of fact she was not Mt. Sukhia. Even on that date the defendants did not say definitely that her name was Mt. Makhni. But the copy of the entry in the school register filed on 19 February 1931 (March is a mistake in the endorsement) suggested that a student of the name of Makhni alias Janak Raj Kuari was entered in the school and studied in it. So it is clear that the defendants have been changing their position and have not been consistent.