MUSAMMAT DAIWATI KUER Vs. MUSAMMAT TUNKI KUAR

JUDGEMENT

(1.) This is an appeal by defendants Nos. 1 and 4 in a title suit brought by Musammai Tunki Kuar as daughter and sole heir of one Umrao Singh. Her brothers Chamroo and Pitambar had predeceased their father and left behind two widows, Musammat Sahago Kuar and Musammat Suraj Barto Kuar, defendants Nos. 2 and 3. Umrao himself had a brother Tengar with whom and whose son Mangar Singh he was joint. Tengar and Mangar died in the lifetime of Umrao. Mangar's son Chandi Singh was the husband of Musammat Daiwati Kuar, defendant No. 1. Plaintiffs case was that Chandi predeceased Umrao who died in Bhado 1326. Plaintiff thus became entitled to all the properties of the joint family, but as she was a young girl married elsewhere, the management of the properties was left in the hands of Ramkrishun Singh, defendant No. 4, brother of Daiwati and cousin of Sohago and Suraj Barto. Plaintiff was married to one Madan Singh who, on her attaining majority, started looking into her affairs, as a result of which Ramkrishun Singh was dismissed. There followed proceedings under Secs.144 and 145, Criminal Procedure Code between the parties, and in these Madan Singh failed and Ramkrishun succeeded. Plaintiff, therefore, brought the suit for recovery of the property left by Umrao, viz., about 40 bighas of land. In para. 24 of her plaint she set up an alternative case, in view of several pieces of documentary evidence which were filed by both the parties in the case under Section 145, Criminal Procedure Code, that if it should be found that Umrao and Chandi were separate, the properties may be partitioned and the plaintiff put in separate possession of a moiety. Defendants Nos. 2 and 3 were impleaded on the ground that Ramkrishun had their names entered in the zamindari laggits and had three sale-deeds executed by them along with defendant No. 1, besides two ijaras, executed, one by defendant No. 1 and the other by the other widows; there was also a will of Umrao leaving his property to Sohago (six annas) and Suraj Barto (ten annas), and a deed of relinquishment by Sohago in favour of the plaintiff.

(2.) The case of defendants Nos. 1, 3 and 4 was that Umrao had predeceased Chandi, who had thus become sole owner of the property of the joint family, and that accordingly the plaintiff had no title at all Defendant No. 2 urged that Umrao and Chandi were separate, that she had taken six annas of Umrao's property under his will and that her ladavi deed in favour of the plaintiff had been obtained from her by misrepresentation. The substantial issue in the case was: "(3) Were Umrao Singh and Chandi Singh living separate ? Did Chandi Singh predecease Umrao Singh ?" The lower Court answered the first part of this issue in the affirmative and the second in the negative, and accordingly decreed the suit in part, giving the plaintiff possession of Umrao's half share after partition." It has been contended on behalf of the appellants that the decree of the lower Court in favour of the plaintiff proceeds on a basis which was not the plaintiffs case, and that as it has been found that Umrao predeceased Chandi, and as it was the common case of the plaintiff and the appellants that the family was joint, the suit should have been dismissed altogether because Chandi being the last and sole holder of the properties, the plaintiff could have no title at all.

(3.) The finding that Umrao predeceased Chandi is supported by Ex. F-l, a registered ijara of February 1920, executed by Chandi Singh for a loan for "defraying the expenses of the Sradh of my grandfather's brother Umrao Singh", and is unquestionably correct. On her own case that Umrao and Chandi were joint, the plaintiff would, therefore, have no title. There was, however, the alternative case in para. 24 of the plaint, to which I have already referred. It has been contended for the appellants that the plaintiff should not have been allowed to plead an alternative claim based on the separation of Umrao and Chandi, and that their jointness being common ground between the plaintiff and the appellants, the issue of separation raised by defendant No. 2, should not have been gone into in the case, as she only claimed under a will of which no probate has yet been taken. But the issue was actually raised and tried without any objection that defendant No. 2 had been wrongly imported into the suit; and the finding on the issue will be res judicata not merely between plaintiff and defendant No. 2 but also between defendant No. 2 and defendant No. 1. Defendant No. 2 was clearly a necessary party to the suit, and though it is true that she could make no title against the plaintiff or any other party on the basis of her father-in-law's will without taking out probate, her pleading could not have been struck out in limine on the ground of want of probate even if the appellants had moved the lower Court to do so because it was open to her to take out probate after the framing of the issues and before the close of the trial of the case. Learned Counsel for the appellants has cited a decision of this Court, Bhimnath Misra V/s. Jaggarnath Prasad 7 PLT 82 : 89 Ind. Cas. 814 : AIR 1925 Pat. 674 : (1925) Pat. 291, as an authority against allowing a plaintiff to make inconsistent alternative claims.