NAGO RAO Vs. MT. ALOOKHI

JUDGEMENT

(1.) THE plaintiff Mt. Alookhi sued the defendant Nago Rao for possession of field 80, an occupancy one, in mauza Wadwihara. The defendant is the lambardar of the mahal in which the field falls. The field was originally held by one Tukya who died in 1909, and, after his death, it was recorded in the names of his widow and his daughter Pisi. Both Sarji and Pisi died in August 1923. The plaintiff claims the field as the daughter of Pisi. It is also alleged by her that Tukya had, by a registered gift-dead, dated 31st March 1906, made over an undivided half-share in the field to Pisi and that the defendant had ratified the gift by accepting rent from Mt. Pisi and Mt. Sarji. Mt. Sarji again was alleged to have inherited a half-interest in the field on Tukya's death, and to this Mt. Pisi succeeded on the death of Sarji. It is admitted by the plaintiff that she was entitled to Pisi's half share only by inheritance, but her case was that she is entitled to exclude the defendant from possession of the other half and that consequently it has lapsed to her.

(2.) THE defendant denied that Mt. Pisi had been validly recorded as a tenant and he also denied the gift of the half-share by Tukya to Pisi and, in any event, pled that gift was inoperative, having regard to Section 46, Tenancy Act 1898.

(3.) THE defendant Nago Rao appealed to the Court of the District Judge, Nagpur. The learned District Judge found that the gift of a half-share was valid, that the plaintiff was Pisi's real daughter, and that, therefore, she was entitled to hold half interest in the tenancy. Following Sumera v. Premchand [1918] 14 N.L.R. 62, he held that there could be no tenancy in respect of a fractional share of a field not defined by metes and bounds and that, therefore, the defendant could not succeed in his claim, even to hold half the field, until it was established by him that there were no heirs of Tukya entitled to hold that half-share.