NANDI SINGH Vs. SITA RAM

JUDGEMENT

(1.) THE appellants in this case are the grandsons of one Fatten Singh, who had two sons, Sardar Singh, the father of the appellants, and Sheo Baksh. The latter married Bichan Kunwar, and died on the 20th April 1869, without leaving any male child. They had a daughter Mithan Kunwar, who was married to Sita Ram, the first respondent. Mithan Kunwar died on the 18th March 1878, leaving a daughter Muasammat Maharaj, the second respondent. Bichan Kunwar died on the 26th March 1874. The suit was brought on 28th September 1883 by the appellants, to recover possession of land in the village, Baboo Rajnan, Pergunnah Harha, District Unao, which was the share of Sheo Baksh in the property inherited by him and his brother, the plaintiffs claiming to be his heirs according to Hindu law, and entitled to succeed to his estate on the death of his widow. It was not disputed that the plaintiffs would be entitled if the ordinary law was applicable. - The defence was rested upon a custom of the village of Baboo Rajnan as to the right to inheritance, and a deed of gift, dated the 7th Marsh 1870 (sic)uted by Bichan Kunwar.

(2.) THE wajib-ul-arz, which governs the right, of succession to the property in dispute, is as follows: Extract from wajib-ul-arz, of village Baboo Rajnan, Perqunnah Harlia, Paragraph 4, of right to inheritance. " The rule of inheritance is that if a sharer has children by two lawfully married wives- that is, one child by one wife and several by the other-the children by both the wives shall get equal shares, that is, one child will get possession over one half, and several children over the other half. If one wife have children, and the other be childless, both of them will hold possession of equal shares for their lifetime; after the death of the childless wife, the children of the other wife will hold possession in equal shares. If there be no male child, and any sharer or his wife make a gift of his or her share during his or her lifetime to his or her daughter or daughter's son, and puts her or him in possession of the same, they will remain in possession. If there remain no descendants of any sharer's son or daughter, his brothers or nephews descended from the same ancestor shall take possession of the share. A non-married wife, or children by her, shall not get anything except maintenance.

(3.) ON the 7th March 1870 Bichan Kunwar executed a deed of gift of the property in dispute to Mussarpmat Mithan and Sita Ram, the words of gift being followed by "I promise and agree in writing that the donee may, from the date of execution of this instrument, take proprietary possession similar to mine over the gifted property. There has been left no claim, right or dispute to me or any of my heirs." This was intended to be and should be construed as an absolute gift. The contention of the appellants in the lower Courts and before their Lordships was, that the gift being invalid as regards Sita Ram was also invalid as regards Mithan. The District Judge and the Judicial Commissioner have both held that it is a valid gift of the whole to Mussammat Mithan. Their Lordships are of this opinion: The gift is to the two donees jointly, and in Humphrey v. Tayleur Ambler 138, Lord Chancellor Hardwicke said: "If an estate is limited to two jointly, the one capable of taking, the other not, he who is capable shall take the whole." This principle does not depend upon any peculiarity in English law, and is applicable to this deed of gift.