GAJE SINGH Vs. MTUCHHABA

JUDGEMENT

(1.) This is a reference by the Local Government, under Rule 17 of the Rules and Orders relating to Kumaun Division, made on the petition of Gaje Singh, and others who were plaintiffs in a suit brought by them to challenge the validity of a mortgage-deed detail 18 August 1925 executed by Mt. Uchabai, widow of Govind Singh in favour of Kalyan Singh and Tika Singh, in respect of property to which she had succeeded on the death of her husband, issuless, a few years before the date of the mortgage. The relationship of the plaintiffs with the deceased husband of Mt. Uchabai will appear from the subjoined pedigree. Bhawan Singh

(2.) The suit as brought is simple. Plaintiffs claim to be the nearest reversioners and presumptive heirs of Gobind Singh on the death of Mt. Uchabai. The alienation is impeached on the usual ground that it was not warranted by such legal necessity as justifies a mortgage by a widow under the Hindu law. Defendant 4 has been impleaded as he attested the mortgage-deed, probably, in token of the same having been executed under justifying circumstances. The plaintiffs do not suggest that they formed with the deceased a joint Hindu family.

(3.) Written statement filed by the mortgagees (defendants 2 and 3) raised two main questions, viz., (1) that the property mortgaged, consisting of lands in a sub- division of the village Sirda and a cowshed, is part of pacca khaikari tenure in which plaintiffs, as separated collaterals, can have no right of inheritance and, therefore, by themselves and without joining all other cosharers of the entire tenure, they cannot maintain the suit and (2) that the mortgage was justified by legal necessity as shown by the attestation of defendant 4 a person equally entitled with the plaintiff.