MUSAMMAT HAZARI DULAIYA Vs. JANKI

JUDGEMENT

(1.) It is impossible to support the judgment of the Court below in this case. The suit out of which this appeal arises was brought by the plaintiff-appellant for possession of a half share of the estate left by her deceased husband one Bason. He died in the year 1891 leaving him surviving the plaintiff his widow and Musammat Sobrani his mother. The names of these ladies were entered in the- revenue papers in place of that of Basori, In 1901 Musammat Sobrani died. As the defendant took possession of a half share of; the estate of Basori after the death of his mother, the plaintiff brought the present suit for recovery of the half share and for mesne profits. The claim was resisted on the ground that according to a custom prevailing among Jains Parwar, to which class the parties belong, the estate of a person who died childless Was inherited in equal shares by his mother and his widow in absolute right; that according to this custom Musammat Sobrani succeeded to a half share of her son's estate; and that she made a gift of it to the defendant who is her son-in-law.

(2.) The Court of first instance found that the custom alleged by the defendant was not established and accordingly decreed the claim.

(3.) On appeal the learned Judge has set aside the judgment of the Court of first instance and has dismissed the claim holding that the custom set up by the defendant was proved.