SOMBHAI ADESING Vs. JAGJIVAN DAYARAM

JUDGEMENT

(1.) In this case, the plaintiff sued to redeem the mortgage in favour of the defendants as the purchaser from Bai Jivi who claimed to be the heir of Bat Kashi, the original mortgagor, by virtue of Bai Kashi's will, Exhibit 17, and also on the ground of her natural kinship to the said Bai Kashi. Jagannath, the husband of Bai Kashi, died about fifty years ago, leaving behind him his widow Kashi, his brother Kasandas, and Kasandas's wife Ratan. A few months after Jagannath, Kasandas died and Ratan the widow of Kasandas got all the property of the two brothers Kasandaa and Jagannath. Ratanbai, the widow of Kasandas, mortgaged three survey numbers, including 4 acres and 37 gunthas of survey No. 153 on June 9, 1873. On Eatanbai's death, Bai Kashi got all the lands entered in her name on March 7, 1885. She was in possession of 5 acres and 2 1/2 gunthas of survey No. 153 which she mortgaged by Exhibit 19 for Rs. 499 in favour of defendant No. 1 and the father of defendant No. 2. Bai Kashi, on January 12, 1903, bequeathad her property to Bai Jivi the daughter of her brother Narbheram of Kaswa and died six months after the will. Bai Jivi sold her right, to the present plaintiff" on August 24, 1921. The plaintiff has brought this suit for redemption.

(2.) The learned Subordinate Judge held that the entries in the record of rights showed that the lands stood in the name of Bai Kashi, that defendant No. 1 as mortgagee cannot dispute Kashi's title, and that though Bai Manchha, the widow of Bai Patlar J. Kashi's husband's sister's son, was in existence, Bai Jivi was entitled to the property by virtue of the will of Bai Kaahi, and was, therefore, entitled to redeem the mortgage. The learned Subordinate Judge, therefore, passed a decree in favour of the plaintiff who was the purchaser from Bai Jivi.

(3.) On appeal, the learned District Judge held that the propertydid not bslong to Bai Kashi absolutely but she inherited the property as the widow of a gotraja sapinda that the inheritance must be traced to Bai Kashi's brother-in-law Kasandas, that Bai Manchha, the widow of the last male owner's Bister's son, being the widow of a bandhu was not entitled to succeed, that Bai Jivi, who was the last male owner's deceased brother's widow's brother's daughter, was not entitled to inherit, and that the property would go by escheat to Government, and, therefore, the plaintiff was not entitled to redeem this property. He further told that tin property was not comprised in the will of Bai Kashi, and that even if it was dealt with by the will of Bai Kashi, the will was invalid with regard to the property inherited by Bai Kashi as the widow of a gotraja sapinda.