BAIKUNTH NATH Vs. JAI KISHUN

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for recovery of possession of certain immovable properties against the defendant Jai Kishun who is in possession. These properties were left by one Mt. Mungi Bahu, the widow of Gangadhar. The plaintiffs claim to be the bandhus of Gangadhar deceased and allege that there are no sapindas or samanodaks or sakullyas of the deceased alive and that they are his nearest heirs. The contesting defendant is the son of Mt. Mungi Bahu's own brother and would not be an heir to the estate if it was a Hindu widow's estate in the hands of Mt. Mungi Bahu.

(2.) The defendant denied the pedigree set up by the plaintiffs and further denied that there was no nearer heir alive in the family of Gangadhar. He also asserted that Gangadhar had made an oral will in favour of his wife Mt. Mungi Bahu who in her turn had bequeathed this property to the defendant of which he had become an absolute owner. The learned Subordinate Judge came to the conclusion that the plaintiffs had succeeded in establishing that they were the nearest bandhus of Gangadhar deceased, but he held that it was clear on the evidence that there were some samanodaks of Gangadhar alive and accordingly the plaintiffs were not the heirs to the estate. In view of his finding he did not consider it necessary to go into the other issues which were raised in the case. The plaintiffs come up in appeal and challenge the finding of the Court below that there are in existence nearer heirs to exclude them.

(3.) Taking up the point raised in the appeal itself first, we may mention that although the defendant in his written statement had not admitted the plaintiff's allegation that there were no sapindas, samanodakas or sakullyas of Gangadhar alive, he did not specifically mention the name of any person whom he alleged to be a nearer heir, nor did he give any particulars. Even on the date when the issues were framed the defendant was not in a position to give the name of any supposed nearer heir. In February 1924 an application was made on behalf of the defendant to summon two witnesses Mt. Shama Bai and Chhote Lal of Ahmedabad on commission. But and even then it was not mentioned that Chhote Lal was a nearer heir. When one of the plaintiffs Prem Nath was in the witness-box a question was put to him whether he knew Chhote Lal of Ahmedabad to which he replied that he did not know him. Even at that stage it was not definitely suggested on behalf of the defendant that Chhote Lal was a collateral who might inherit. After the plaintiffs evidence was closed the defendant examined himself as his own witness, and he then stated that after the settlement of the issues he learnt from Mt. Shama Bai that Chhote Lal of Ahmedabad belonged to the family of Gangadhar. The statement of Jai Kishun was not based on any personal knowledge of his own but on what he had heard from Mt. Shama Bai. Mt. Shama Bai was examined on commission but the learned Subordinate Judge did not allow the defendant's application for the examination of Chhote Lal. We shall come to this point later on. Mt. Shama Bai no doubt gave a pedigree different from that set up by the plaintiffs and if her statements were believed the plaintiffs would not even be the bandhus of Gangadhar. As regards Chhote Lal her statement was that Bapuji was related to Gangadhar as a distant brother of the same gotra. The evidence of the defendant himself was that Bapuji was the name of the father of Chhote Lal. Mt. Shama Bai did not state that Bapuji's son was related to Gangadhar within 14 degrees. She did not remember the name of Bapuji's father as she had not seen him. In cross-examination she admitted that she was not on friendly terms with the plaintiffs but was on bad terms with them and that there had been ill-feeling between herself and their father and uncle for a long time, in fact from the time of Data Ram, her grandfather-in-law. One of the plaintiff's witnesses Parshotam Jani in cross-examination stated that his great-grandfather was the brother of Ram Nath, the ancestor of Gangadhar. On this evidence the learned Subordinate Judge recorded a finding that the existence of samanodaks such as Parshotam Jani and Chhote Lal was proved, which disentitled the plaintiffs from instituting this suit.