1. This second appeal arises, out of a suit for a declaration that the house in suit belongs to the plaintiff Kunwar Kalikanand Singh and that one-third of it is not liable to sold in execution of a decree obtained by the defendants on the basis of a mortgage executed in their favour by Kunwar Nityanand Singh. The latter was a brother of the plaintiff named Kunwar Kalikanand Singh, and there is a third brother Kunwar Kamlanand Singh. The plaintiff's case is that the house in dispute belonged to Mt. Badan Dai, his father's sister, who died some time before 1903, and that she transferred the house to him before her death by an oral gift. The defendants denied the alleged gift, and their case is that the three brothers, namely, the plaintiff, Nityanand Singh and Kamalanand Singh, inherited the house as heirs of Mt. Badan Dei, and that Nityanand Singh had a title to transfer the one-third share in the house.
2. The trial Court and the lower appellate Court have found that the alleged gift in the plaintiff's favour was not proved. It has also been found by the Court below that neither party have proved their title to the property. According to the Court below the plaintiff and his brothers could in no case be heirs of Mt. Badan Dei. The plaintiff has been found to have been in actual exclusive possession of the house in dispute since the death of Mt. Badan Dei, but his possession has not been found to be adverse to his brothers, so the Court below held that he could not get a declaration of title. He was however granted a declaration that the defendants are not entitled to dispossess him and have one-third of the house sold in execution of their decree.
3. The Court below is wrong, in our opinion, in holding that the plaintiff and his brothers could never come in as heirs of Mt. Badan Dei, their father's sister. We have been referred to Kanakammal v. Ananthamathi Ammal AIR 1915 Mad 18 and Ganpat Rama Joshi v. Secretary of State AIR 1921 Bom 138 in which it has been held that the stridhan property of a childless Hindu female devolves on her death on her husband, failing the husband on his sapindas, and on failure of the husband's sapindas it devolves on the blood relations of the deceased. The same view is taken by West and Buhler in their 'Hindu Law' fourth edition, pages 505 to 508. No authority to the contrary has been shown to us. It therefore seems to be clear that on failure of the husband's heirs the property would pass by inheritance to the blood relations of Mt. Badan Dei and might therefore pass to the plaintiff and his brothers. The Court of first instance said that the three brothers were the only relations whom Mt. Badan Dei had left behind. It has not been shown that any sapindas of her husband were in existence. So we must at least bold that the claim that Kunwar Nityanand Singh had succeeded to one-third of the house in dispute by inheritance has not been disproved.
4. On the finding that the property may have devolved upon the three brothers by inheritance the view of the Court below cannot be upheld. All three brothers were equally entitled to the property and the mere fact that the plaintiff has been found to have been in exclusive possession of the property will not extinguish the title of his brothers, It has expressly found that his possession was not adverse to his brother so he must be presumed to be holding's the property on their behalf.
5. It is clear that he has not established his claim for a declaration that Nityanand Singh was not entitled to mortgage the one-third share, and the claim was rightly dismissed by the trial Court. The Court below was also wrong, in our view, in granting the plaintiff a declaration that the defendants were not entitled to dispossess him, or to have one-third share of the house in dispute sold in execution of their decree. A declaration in these terms could only have been given on the view that Nityanand Singh was proved to have no title to the property. We may note in passing that a decree for a declaration that the defendants were not entitled to dispossess the plaintiff was riot asked for in the plaint.
6. We therefore allow the appeal and dismiss the plaintiff's suit with costs in all Courts.