DEO DUTT RAM SUKAL Vs. REWA PRASAD SUKAL

JUDGEMENT

(1.) THIS appeal was heard ex parte; but the disputed questions are not complicated and are ultimately confined to a narrow issue by findings in fact which bind this Board. On that issue the grounds of the judgments appealed against are explained with sufficient fulness to allow of their validity being tested with some certainty.

(2.) THE dispute arose on the death of Nanhi Bahu, widow of Sita Ram, in 1889. From 1863 her name had stood, and it stood at her death, recorded in the Settlement Record as owner, for her lifetime, of eight-anna shares of the zemindari of certain villages, which had been possessed by her husband Sita Ram. The present dispute relates to those shares. The primary theory of the case of the plaintiff (the original respondent in this appeal) was that Sita Ram's estate was divided estate; and, if this had been the fact, the plaintiff, as his nearest heir, would admittedly prevail. The defendant (now the appellant) on the other hand, maintained, and he has proved, that the estate of Sita Ram was undivided estate enjoyed by Sita Ram jointly with those from whom the appellant derives. There had, it is true, been a partition, in 1824, but this was only between the branch of the family now represented by the plaintiff on the one hand and the rest of the family on the other; the plaintiff's branch dropped out of the community, but the community remained. The findings of the Judicial Assistant Commissioner, Jubbulpore, which are conclusive of the facts in the case, expressly assert that Sita Ram was at his death in shamlat with Partab Singh, who is now represented by the appellant; and carrying the matter a step further and to the latest date with which this suit is concerned, he finds that Nanhi Bahu was at her death in shamlat with the appellant.

(3.) BEFORE examining the statute and the award itself, it is well to realise the antecedent facts which are held to be thus affected by them. In 1863 when the proceedings were taken which resulted in the award, the parties to them belonged to an undivided family and the estate was undivided estate. The death of Sita Ram necessitated some mutation of names for the purpose of revenue; it did not necessitate a partition. His widow's right was to maintenance, but the satisfaction of that right by the assigning to her the enjoyment for her lifetime of a share of the estate is not an unnatural or unaccustomed mode of dealing with property that is undivided and is intended to remain undivided. This is pointed out with clearness and emphasis by the Judicial Assistant Commissioner. "The circumstance," he says, speaking of the mutation of names, does not seem to me to be of the slightest importance in deciding this question, in view of the well known practice of members of an undivided family in this part of the country of recording proprietary rights in villages in the shares to which each member of the family would be entitled, if he separated and at the death of each member continuing to enter his share in the name of that member's heirs although they still continued in shamlat." This view of the matter does not require modification even where, as in the present case, the right recorded is one of zemindari, while the original interest was stated to be a patti right.