INDA KUNWAR Vs. KASHI PRASAD

JUDGEMENT

(1.) This appeal arises out of a suit for possession of a share in the village of Kanai Shibnagar in the district of Bareilly and for mesne profits, The facts are these. One Newal Rai was the owner of this as well as other property. He died before the year 1872, leaving a widow Musammat Jaika and two daughters, namely, Musammat Bilaso and Musammat Hulaso. One Banarsi Das purchased the property in suit at a sale in execution of a decree obtained against Musammat Jaika. The defendants Kashi Prasad and Bssdeo Sahai are the brothers of Bandrsi Das, who is dead. Five kachwansis of the property is in the possession of the defendants 3 to 8, and as to this portion the plaintiff's suit has been dismissed and we are not concerned with it in the present appeal. Musammat Jaika died on the 27 of November 1878, and after her death, her daughters Bilaso and Hulaso, sold of the property to Musammat Lachman and three others. A suit was brought by the vendor and vendees for possession of the village of Hafizpur, not the village in dispute, and the suit was decreed on the 18 of May 1881, and on appeal the decree for possession was affirmed by the High Court. Musamcnat Hulaso died in the year 1894 and her sister Musammat Bilaso died on the 15 of September 1895. Musammat Hulaso left a son Majnun Lal, and he on the 15 of Jane 1904 sold the village in dispute to the plaintiff Musammat Inda Kunwar. The present suit was instituted on the 11 of December 1905, so that it was brought within 12 years from the deaths of Musammat Hulaso and Musammat Bilaso.

(2.) One of the defences set up was that the debt of Musammat Jaika, in respect of which the property was sold, was incurred for legal necessity. This defence was not established, and it has not been raised before us, Another plea raised was in regard to the 3/4 of the property which was sold by Musammat Hulaso and Bilaso on the 8 of January 1881. The plea was that this sale was carried out for legal necessity and that the plaintiff, as legal representative of Majnun Lal, was bound by it. This is the subject of the connected appeal No. 280 of 1906.

(3.) As to the entire of the village the main and important defence was that the property was not the estate of Newal Rai and did not devolve on Musammat Jaika as his heir; that Newal Rai was only a mukaddam of the property, being recorded as Iambardar, and that, after his death, the Government conferred proprietary rights on Musammat Jaika, and she thus acquired the absolute estate and did not inherit it from her husband, and that consequently Banarsi Das, who purchased the property at a Bale in execution of a decree obtained against Musammat Jaika, acquired an absolute estate in it. This was the main contention before us of the defendants appellants.