CHAUBE RASHIK LAL Vs. MTRADHA DULAIYA

JUDGEMENT

(1.) This is a second appeal by the plaintiffs and arises from a suit for possession which was decreed by the Court of first instance. On appeal by the defendant, the plaintiffs suit was dismissed. The facts, so far as it is necessary to mention them for the purpose of this appeal, are as follows : The property in dispute belonged to one Janki Prasad and his sons by his two wives. The following pedigree will explain the positions of various persons whose names occur in the statement of the facts of the case:

(2.) There were disputes in the family sometime before 12 July 1891 when certain arbitrators appointed by the members of the family gave an award dividing the family property between two sets of the members of Janki Prasad's family. Half of the family property was allotted to Ram Prasad and Har Das and the widows of Ram Sewak and Bhagat Raj who had died before 1891. The other half was allotted to Janki Prasad himself and his sons by the second wife. The validity of the award and its binding character are no longer in dispute between the parties. The award provided inter alia that certain properties be given to Mt. Sarwan Dularia, the widow of Ram Sewak, and Mt. Ujiari, the widow of Bhagat Raj, for their maintenance. Their interest was expressly limited to their lifetime. The award wont on to provide that the widows would be entitled to adopt and that, in case they did not make any adoption and became unchaste, Ram Prasad and Har Das, the surviving brothers of their deceased husbands, would be entitled to take possession of the property allotted to them for maintenance. The widows were not empowered to alienate the property given to them except to a member of the family. The last clause provided that Janki Prasad and his sons by the second wife would have no concern with the half allotted to Ram Prasad, Har Das and the widows, which would eventually devolve upon the sons of Ram Prasad and Har Das. Similarly it provided that Janki Prasad's representatives through his first wife would have no concern with the half given to him and his representatives from the second wife.

(3.) Mt. Ujiari, the widow of Bhagat Raj, made a gift of the property given to her for maintenance to Damodar, son of Janki Prasad by his second wife (the husband of the present defendant, Mt. Radha Dulaiya). The donee obtained possession under the deed of gift and has been in possession ever since. Mt. Ujiari became unchaste in 1910 or 1912. This fact was in controversy in both the lower Courts but their findings on an essential question of fact like this is conclusive in second appeal. We must therefore take it that Mt. Ujiari became unchaste in 1910 or 1912. She died in 1929. The present suit was brought on 26 November 1932 by the son of Har Das and grandsons of Ram Prasad on the simple allegation that the property given to Mt. Ujiari under the award already referred to was for her life and that the plaintiffs who are the son and grandsons respectively of Har Das and Ram Prasad are entitled to possession thereof under the award. The only defence which it is necessary to mention at this stage is that Mt. Ujiari became unchaste in 1910 or 1912 and that the right to sue accrued to Ram Prasad and Har Das or their descendants at that time and the suit not having been fought for more than 12 years from the time of Mt. Ujiari's unchastity is barred under Art. 143, Lim. Act. This contention did not find favour with the trial Judge but was accepted by the learned District Judge in appeal by the defendant.