INDER KUER Vs. MT PIRTHIPAL KUER

JUDGEMENT

(1.) This is an appeal from the decree of the Chief Court of Oudh dated 27 February 1940, which reversed the decree of the Civil Judge, Sitapur, dated 30 September 1936, and decreed the plaintiffs' suit. The appellant before the board was defendant 2 in the suit, the surviving widow of one Mathura Singh, deceased. The first and the only other defendant, her co-widow, did not join the appellant in filing this appeal. She was therefore made respondent 3. During the pendency of the appeal she died and her name was removed; and the appellant was made her heir and legal representative by the order of the Chief Court. The deceased husband of respondent 1, and respondent 2, were the original plaintiffs in the suit. They will be referred to as the respondents. The relationship of the parties to the suit is shown in the following genealogical table : One Bakhtawar Singh, a Hindu, had three sons, Raghubar, Ram Dayal and Ram Sahai. Of these, Raghubar and Ram Dayal had each one son called respectively, Sheo Singh and Mathura Singh; and Raghubar had a daughter as well, whose sons were the plaintiffs in the suit. Sheo Singh died on 17 December 1920, without issue, leaving two widows, Mt. Bitten Kuer, who died on 28 February, 1924. and Mt. Kanchan Kuer, who died on 25 April 1930.

(2.) Mathura Singh, the cousin of Sheo Singh, died on 11 December 1934, leaving two widows-the defendants in the suit-of whom the surviving widow, defendant 2 is, as was stated before, the appellant. The appeal arises out of a suit instituted by the respondents for possession of the immovable properties mentioned in lists A and B of the plaint, under claim of being the heirs of Sheo Singh, the last full owner, They claimed the properties as Sheo Singh's separate estate, to which they as his sister's sons were entitled to succeed by virtue of S. 2, Hindu Law of Inheritance (Amendment) Act, 2 of 1929, (hereinafter referred to as "the Act"). The Act applies to persons otherwise subject to the law of the Mitakshara. Section 2 of the Act says that "A son's daughter, daughter's daughter, sister and sister's son shall in the order so specified be entitled to rank in the order of succession next after a father's father and before a father's brother". It will be observed that Mathura Singh, as the son of Sheo Singh's father's brother and ranking as such in the Mitakshara order of succession would, under the section, be postponed to the plaintiffs as sister's sons of Sheo Singh. The case of the respondents is that after the death of Sheo Singh, his widows Bittan Kuer and Kanchan Kuer, entered into joint possession of Sheo Singh's property, that on Bittan Kuer's death, Kanchan Kuer came into possession of the entire property, that on her death Mathura Singh took wrongful possession of the same, and that on his death his widows obtained wrongful possession against them. The appellant and her co-widow resisted the claim of the respondents on the alternative contentions, viz., (1) that the properties in suit were joint family properties which on Sheo Singh's death in 1920 passed by survivorship to their husband, and on his death in 1934, to themselves for a limited estate and the appellant claims that on her co-widow's death they vested in herself alone; and (2) that even if the properties were the separate properties of Sheo Singh under the custom applicable to the family, Mathura Singh took as heir, the operation of S. 2 of the Act being excluded by S. 3 thereof. Section 3 is as follows: "Nothing in this Act shall (a) affect any special family or local custom, having the force of law." The custom relied on by the appellant and her co-widow is thus stated in para. 21 of their joint written statement: "It has been the custom in the family of Bakhtawar Singh and his descendants that in the presence of collaterals, daughters, their sons, or sisters and their sons, are excluded from inheritance. If there be no collateral then daughters, their issue, and after that sisters and their descendants become heirs."

(3.) On the above contentions two questions arose for decision in the Courts in India, and the same questions arise for decision also before the Board. These questions are: (1) Whether "Sheo Singh and Mathura Singh were members of a joint Hindu family, or whether Sheo Singh died while separate from Mathura Singh, and (2) whether there is any custom in the family of Sheo Singh excluding sisters and their issue if collaterals are in existence. In support of their respective contentions both parties gave evidence, both oral and documentary, on a consideration of which the learned Civil Judge answered both questions in favour of the appellant; the learned Judges of the High Court set aside his decision on both points. As is usual in cases of this kind, the oral evidence is much interested and indefinite, and the documents by themselves are inconclusive. The case has to be decided on the evidence read as a whole. The burden of proving that Sheo Singh was separate in estate from Mathura Singh is on the respondents. It is well known that the state of every Hindu family is presumed to be joint, joint in food, worship and estate, but the strength of the presumption necessarily varies in each case. It has been laid down that the presumption of union is stronger in the case of brothers than in the case of cousins, and the farther you go from the founder of the family, the presumption becomes weaker and weaker. The evidence in the case has to be reviewed in the light of this presumption. Sheo Singh and Mathura Singh, being cousins, the presumption of jointness may not be so strong as it would be had they been brothers.