MT AFTI Vs. MTSUKNI

JUDGEMENT

(1.) This is an appeal by defendant 1 in a suit brought by the plaintiff for possession of the disputed properties on declaration of her title thereto. To appreciate the controversy between the parties the following genealogical table is relevant. The plaintiff's case is that the family was joint and that on the death of Lalsa, who was the last surviving coparcener, the disputed properties which belonged to the family devolved on his widow Mt. Munia and on the latter's death on the plaintiff. The defence of defendant 1 is that the plaintiff is not the daughter of Lalsa, that Lalsa and Chattardhari were separate and that Lalsa's wife Munia being an idiot, Lalsa made a gift of his half share to defendant 1. So she is in possession of the entire properties in her own right, half as heir to her husband and half by virtue of the gift. Defendants 2 and 3 are zarpeshgidars of a portion of the disputed properties under a deed executed by defendant 1. The learned Subordinate Judge has held that the plaintiff is the daughter of Lalsa and that Lalsa, Lachhuman and Chattardhari were all joint, and Lalsa being the last surviving coparcener was the owner of the entire family properties. He has disbelieved the defence story regarding the gift by Lalsa, He has accordingly decreed the entire claim of the plaintiff.

(2.) There are two points raised in this appeal, first, that the plaintiff is not the daughter of Lalsa, and second, that in any view she is not entitled to more than eight annas interest because the family was separate. On the first point the learned Subordinate Judge has, upon a careful consideration of the evidence which is entirely oral, come to the finding that the plaintiff is the daughter of Lalsa. There was very little to be said on behalf of the appellant on this point and without going into details it is enough to state that the, learned Subordinate Judge's finding on this point is correct.

(3.) The real question is whether the two branches of the family were separate. The most important evidence on the point is a registered mortgage bond (Ex. B) dated 12 June 1907 executed by Lalsa and Mt. Afti jointly in favour of one Deocharan Singh. This document unmistakably shows that Chattardhari, husband of Afti, must have been separate from Lalsa, otherwise it is inconceivable that Lalsa would join Afti in executinga mortgage thereby admitting her title as his co- sharer in the mortgaged properties. The learned Subordinate Judge considers that this document strongly supports the plaintiff's allegation that the family was joint. This is entirely wrong. The explanation put forward on behalf of the respondent is that the mortgagee might for his own safety have insisted on Afti joining in executing the mortgage. It is difficult to accept this explanation. Then there are various entries in the Record of Rights (Exs 5 and L) which show that Mt. Munia (Lalsa's widow) and Mt. Afti were recorded in respect of certain properties with a note that they had equal shares. This is entirely inconsistent with the theory that the family was joint. Mr. S.K. Mitra, the learned Counsel on behalf of the respondent, has referred to certain rulings to support his contention that the mere fact that a widow's name is recorded, in revenue papers is no evidence of separation in the family. I am afraid those rulings cannot be of any assistance to us in considering the effect of the particular entries in the Record of Rights before us. Upon those entries there can hardly be any room for doubt that the two widows Munia and Afti were equally interested in the properties. Thus the documentary evidence in my opinion is quite convincing to establish the case of separation.