DIPNARAIN RAI Vs. PUNDEO RAI

JUDGEMENT

(1.) This is a plaintiff's second appeal against the appellate decree of the Additional District Judge of Saran upholding the judgment of the trial Court in dismissing the suit with costs.

(2.) The suit in which this appeal arises was instituted by four plaintiffs of whom plaintiffs 2, 3 and 4 are donees in respect of a part of the suit property from plaintiff 1. The allegations on which the cause of action for the suit is based are as follows: One Harnam Rai had four sons Mahip Rai, Nidha Rai, Surat Rai and Prayag Rai, Plaintiff 1 Dipnarain Rai, claims to be the grandson of Surat, he being the son of Thakur Rai since deceased. Of the aforesaid four brothers, Prayag Rai separated from the family and we are not concerned with his branch in this appeal. According to the" plaintiffs, the other three brothers Mahip, Nidha and Surat and their descendants continued to be joint in mess and estate. Nidha died issueless in the state of jointness, Mahip and two out of his three sons died in a state of jointness leaving Banarsi Rai surviving. Similarly in the branch of Surat, the plaintiff is the only surviving male member, plaintiffs 2 to i being the sons of his two sisters Bhagwati Kuar and Shyamsunder Kuar. While the plaintiff, his father Thakur Rai and Banarsi were living as members of a Hindu Mitakshara joint family, plaintiff 1 went to serve as a member of the Calcutta police and in 1909 he went away to South America. His father having died before the revisional survey, Benarsi Rai was alone recorded in that survey in respect of the entire joint family properties.

(3.) The plaintiff No. 1 returned from South America arriving at Calcutta on 21-10- 1938. On his return home, he found that Banarsi had died and there was no member of the family either male or female then surviving.