BALBHADER PRASAD Vs. PRAG DATT

JUDGEMENT

(1.) The parties to this appeal are descended from a common ancestor except defendants Nos. 2 and 6. One Saheb Rai Shukul, as the pedigree given at page 9 of the paper-book will show, had three sons, namely, Debi Din, Bhawani Din and Jeorakhan. We are concerned here with the descendants of Bhawani Din and Jeorakhan only. The plaintiffs in the present case are two of the grandsons of Bhawani Din and the defendants with the exception of defendants Nos. 2 and 6 are the descendants of Jeorakhan, Jeorakhan died more than 45 years prior to the institution of the suit leaving him surviving a widow Musammat Sita Kunwar and three daughters Musammat Makhan Kunwar, Musammat Rani Kunwar and Musammat Tulsha Kunwar. Jeorakhan had adopted one of his nephews, namely, Sheva Das, who predeceased him. Sheva Das left two children; a son and a daughter called Balgobind and Musammat Bakhta Kunwar respectively. Balgobind predeceased Jeorakhan, Musammat Bakhta Kunwar is the mother of Balbhadar Prasad, defendant No. 3, who is one of the appellants before us. Musammat Makhan Kunwar had a son Mangli Prasad, who died leaving him surviving two sons named Gargi Din and Brij Nandan. They are defendants Nos. 4 and 5 in the suit and appellants Nos. 2 and 3 before us. Musammat Rani Kunwar was defendant No. 1 and was a party to this appeal as a respondent but we are told that she is dead now. Musammat Tulsha Kunwar had a son named Durga Prasad, who died leaving him surviving a daughter called Chiti, who is no party to the suit.

(2.) Jeorakhan owned some immoveable property. He had shares in the villages Patari, Merakhpur and Madarpur. In 1852 he and two other persons purchased the equity of redemption of the village of Said Alipur. In January 1870 be executed a deed of gift of his shares in the villages Patari and Merakhpur in favour of his three daughters and his granddaughter Musammat Bakhta Kunwar. He retained Madarpur and. the equity of redemption in Said Alipur. After his death mutation of names was effected in favour of his widow Musammat Sita, Kunwar in respect of the villages Madarpur and Said Alipur. Musammat Sita Kunwar died within a year or two of her husband s death. After her death a dispute arose between her daughters and her granddaughter Musammat Bakhta Kunwar on the one side and the descendants of Bhawani Din on the other. The latter claimed the share of Jeorakhan in Madarpur and his right of redemption in Said Alipur under an oral Will from Musammat, Sita Kunwar. On the other hand, her daughters and her granddaughter claimed the property on the same ground, that is, an oral Will from Musammat Sita Kunwar in their favour. The mutation of names was allowed to the daughters and the grand-daughter of Musammat Sita Kunwar, but we cannot say now on the materials on the record on what ground the order of mutation was made. No copy of that order has been produced.

(3.) After the mutation order in favour of the ladies, the name of each of them was entered in respect of a one-fourth share and each of them enjoyed the property separately. Musammat Makhan Kunwar died about 1875 and after her death, the name of her son, Mangli Prasad, was entered in the revenue papers in respect of her one fourth share. On the death of Mangli Prasad in 1900, the names of his two sons Gargi Din and Brij Nandan were entered in respect of the same property in the revenue papers. Musammat Bakhta Kunwar died about 1883 and the name of her ton Balbhadar Prasad was entered in her place in the revenue papers. Musammat Tulsha Kunwar died some time in 1907 and the name of her son Durga Prasad was substituted for her name in the revenue records. Durga Prasad died oh the 24th of October 1915 and instead of his daughter s name being entered in his place, the name of his cousin Narain Prasad was recorded in the government papers on the allegation that he was the adopted son of Musammat Tulsha Kunwar. He is defendant No. 2. In 1911 Gargi Din, Brij Nandan, Musammat Rani Kunwar, Durga Prasad, Narain Prasad and Balbhadar sued to redeem the mortgage of Said Alipur. It should be observed here that the mortgage was oreated in 1847 and that it was a usufructuary mortgage for Rs. 1,700. The above-mentioned persons stated in their plaint that their ancestor Jeorakhan had with two others purchased the equity of redemption of the mortgagor and that they as heirs of Jeorakhan were entitled to redeem the mortgage It was further stated that in case it was found that they, i.e., Gargi Din, Brij Nandan, Durga Parshad and Balbhadar, were not the legal representatives of Jeorakhan and could not sue as such for redemption, Musammat Rani Kunwar who represented the full rights of her father could maintain the action. Moreover, Gargi Din, Brij Nandan, Narain Prasad and Balbhadar had purchased the rights of one of the sons of Roshan Khan, a co-purchaser with Jeorakhan of the equity of redemption, and could, therefore, join in the suit. The claim was contested but a decree was passed in favour of all the plaintiffs on the 27th of June 1911. The redemption money was paid and mutation was effected in favour of the then plaintiffs on 30th March 1912.