M RAGHAVULU NAIDU Vs. KAMSALYA BAI

JUDGEMENT

(1.) (Appeal No. 171 of 1934). This appeal arises out of a suit for possession. The plaintiff claimed to bo entitled to the suit properties as the widow of one Maniram Misser and according to the plaintiff's case he (Maniram Misser) was the reversionary heir to the estate of the last male owner of the suit properties named Guruprasad. The plaintiff's husband admittedly survived the widows of the last male owner; and if he was the nearest heir to Guruprasad on the date of the widow's death, it is not disputed that the plaintiff will be entitled to the property, subject to the other defences raised in the suit. It was contended by the defendants that the plaintiff's husband was not the reversioner. This contention was based upon two grounds: one that Guruprasad had left a will whereby his properties had been bequeathed absolutely to his two widows Rama Bai and Sona Bai; the other ground was that the plaintiff had not proved that her husband was the nearest heir and that there were no nearer heirs in existence.

(2.) As to the first question, it has been held by this Court in a former stage of this litigation in A.S. No. 132 of 1928 that even on the footing that the widows took an absolute estate under the will of their husband, the half share of the widow who died first, namely Rama Bai, must be only deemed to have been inherited by the other as a co-widow and that not-withstanding the frame of the plaint, the plaintiff was entitled to such relief as she could claim in respect of Rama Bai's half share. It was apparently then assumed that in respect of Rama Bai's half- share, Sona Bai as heir would take only a limited interest; but the point was not definitely decided. Accordingly the appellant's learned counsel in the course of his argument before us raised the contention that even in respect of Rama Bai's half-share, Sona Bai must be deemed to have taken an absolute interest, that she was therefore competent to alienate it at her pleasure and that there was no reversionary interest which plaintiff could claim as heir to her husband. It is sufficient to say that this contention is not tenable, in view of the decision of the Judicial Committee in Sheo Partab Bahadur Singh V/s. Allahabad Bank (1903) 25 All 476, (see also Ayiswarya Nandaji Saheb V/s. Sivaji Raja Saheb, AIR 1926 Mad 84 at p. 152 where it was taken as settled that a co-widow who succeeded as heir to the Stridhanam property of a co- widow would take only a limited interest).

(3.) As to the proof that the plaintiff's husband was the nearest reversionary heir to the estate of Guruprasad, it was contended on behalf of the appellants that the evidence on the plaintiff's side was inadequate and did not establish that there were no nearer heirs in existence. As the learned Subordinate Judge points out, the evidence on the point is all one way and no suggestion has been made even in the course of cross-examination of the plaintiff's witnesse that there was any particular person in existence of whom it could possibly be said that he might be a nearer heir. Mr. Viswanatha Sastri contends that the rule that a person claiming as a reversioner should prove not merely that ha is an heir but that he is the nearest heir involves that the plaintiff must exclude the possibility of there being nearer heirs in existence. We do not think that this is a fair interpretation of the rule. It is only if on the evidence there is room for doubt as to the plaintiff being the nearest heir, the principle comes in, that the Court must insist on strict proof that he is the nearest heir. The plaintiff is not expected to prove an absolute negative, in the sense of excluding the possibility of the existence of some unknown person who if he had existed might be a nearer heir. We therefore agree with the lower Court that the plaintiff has established her husband's title as reversionary heir to the estate of Guruprasad.