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Raj Deo Singh and ors. Vs. Mt. Janak Raj Kuari - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1936All154
AppellantRaj Deo Singh and ors.
RespondentMt. Janak Raj Kuari
Excerpt:
.....the defendants' evidence, and has accordingly decreed the claim. jageshra kunwar, the widow of basdeo singh, which took place in 1926, there was a proceeding in the mutation court in which both the present plaintiff as well as the contesting defendants appeared. the copy of the birth register shows that the plaintiff might well be the daughter of basdeo singh who was born in april 1913 in accordance with the age given in the plaint. another strong circumstance is that if the writer had intended to write a long name, he would have commenced the writing from a point close to the margin on the left hand side as he has done in regard to the other entries, and would not have left a blank space on the left side with the result that the name had to go on to the next column. the learned..........this is a defendants' appeal arising out of a suit for recovery of possession of the estate of basdeo singh whose daughter, the plaintiff, mt. janak raj kunwari, claims to be. the suit was filed on 18th december 1929, and the age of the plaintiff given in it was 16 years and 8 months. the plaintiff denied that basdeo singh had loft any posthumous son as had been found by the revenue court on a previous occasion, and alleged that the other two daughters of basdeo singh were dead. on behalf of the defendants it was denied that the plaintiff was the daughter of basdeo singh and a positive case was set up that she was the daughter of one ram kishun singh. the main question in the case was whether mt. janak raj kunwari was the daughter of the deceased basdeo singh. the learned subordinate.....
Judgment:

Sulaiman, C.J.

1. This is a defendants' appeal arising out of a suit for recovery of possession of the estate of Basdeo Singh whose daughter, the plaintiff, Mt. Janak Raj Kunwari, claims to be. The suit was filed on 18th December 1929, and the age of the plaintiff given in it was 16 years and 8 months. The plaintiff denied that Basdeo Singh had loft any posthumous son as had been found by the revenue Court on a previous occasion, and alleged that the other two daughters of Basdeo Singh were dead. On behalf of the defendants it was denied that the plaintiff was the daughter of Basdeo Singh and a positive case was set up that she was the daughter of one Ram Kishun Singh. The main question in the case was whether Mt. Janak Raj Kunwari was the daughter of the deceased Basdeo Singh. The learned Subordinate Judge has come to the conclusion that the plaintiff's evidence is reliable and has rejected the defendants' evidence, and has accordingly decreed the claim. This finding is challenged in appeal on behalf of the defendants. So far as the plaintiff is concerned her case has been consistent throughout. After the death of Mt. Jageshra Kunwar, the widow of Basdeo Singh, which took place in 1926, there was a proceeding in the mutation Court in which both the present plaintiff as well as the contesting defendants appeared. The plaintiff there also put forward the case that she was the surviving daughter of Basdeo Singh.

2. The defendants no doubt denied this fact but do not appear to have set up any positive case at that time that the plaintiff was the daughter of Ram Kishen Singh: at least this does not appear to be so from any documents which have been brought to our notice. The revenue Court came to the conclusion that the plaintiff was the daughter of Basdeo Singh, but that the latter had left a posthumous son who succeeded to the estate and that on his death Basdeo's mother, Mt. Manhasi, became entitled to the estate as a Hindu mother and the present plaintiff was not an heir at all. The learned Assistant Collector pointed out that Mt. Manhasi Kunwar was apparently trying to favour her granddaughter and was keeping behind the scene and not setting up her rights. Nevertheless he ordered that the name of Mt. Manhasi should be entered in place of Mt. Jageshra Kunwar's name. When the plaintiff was examined in the civil Court on 4th February 1931 she was identified by her own maternal uncle Lachhmi Rai as Mt. Janakraj Kunwari, daughter of Basdeo Singh. On the other hand, the defendant Jagdeo Singh also saw her and identified her as the daughter of Ram Kishun Singh and gave her name as Mt. Sukhia. At that time no other name was suggested by the defendants. In the cross-examination also there was nothing to show that she was Mt. Makhni, daughter of Ram Kishun Singh. At . any rate, no clear question was put to her in cross-examination.

3. Before identifying the plaintiff as the daughter of Ram Kishun Singh, the defendants had produced a copy of a birth register, which showed that a daughter had been born to Ram Kishun Singh in 1910 and apparently it was suggested that the plaintiff might be that daughter. After she had been identified by the defendant as Mt. Sukhia, daughter of Ram Kishun Singh, the plaintiff produced a copy of a death register showing that the daughter of Ram Kishun, who might have been born in 1910, died subsequently. We then find that the next day, on 5th February 1931, the defendants filed an application for a certified copy of an entry in a District Board school register. The copy was ready on 6th February 1931 and was filed in Court on 19th February 1931 (1930 is a mistake in the endorsement). On 23rd February 1931 the defendants filed an application stating that Jagdeo Singh had made a mistake in naming the plaintiff as Mt. Sukhia, daughter of Ram Kishun Singh, and that in point of fact she was not Mt. Sukhia. Even on that date the defendants did not say definitely that her name was Mt. Makhni. But the copy of the entry in the school register filed on 19th February 1931 (March is a mistake in the endorsement) suggested that a student of the name of Makhni alias Janak Raj Kuari was entered in the school and studied in it. So it is clear that the defendants have been changing their position and have not been consistent.

4. Jagdeo Singh, who identified the plaintiff as Mt. Sukhia, has not ventured to come into the witness box to explain away his own mistake. On the other hand, the plaintiff not only went into the witness box and deposed that she was the daughter of Basdeo Singh and the wife of Kashi Nath, but she also produced Katwaroo Singh, her husband's brother, who stated that he was married to the plaintiff's sister and that the plaintiff was the daughter of Basdeo Singh. Ram Kishun Singh, whose daughter she was said to be by the defendants, was also produced by the plaintiff, and he stated that the plaintiff was not his daughter and that his daughter was Mt. Makhni. After the defendants had disclosed the name of Mt. Makhni and put forward the case that the plaintiff was Makhni, the plaintiff got Mt. Makhni examined on commission and she also stated that she was the daughter of Ram Kishun Singh and that she had studied in that village school and that her name was Makhni and her alias was not Janak Raj Kuari. The copy of the birth register shows that the plaintiff might well be the daughter of Basdeo Singh who was born in April 1913 in accordance with the age given in the plaint.

5. The defendants' new case was that the plaintiff had two names, Mt. Janak Raj Kuari and Mt. Makhni. Now, in the first place, it would be usual to have the shorter name for the alias than the longer name, and one would have imagined that her real name would be Mt. Janak Raj Kuari and not that it should have been the alias. Great reliance was placed on the school register in which the name entered was Mt. Makhni alias Janak Raj Kuari. The learned Subordinate Judge has come to the conclusion that this entry in the school register is an interpolation. There certainly are several suspicious circumstances which support that view. In the first place, the words 'urf Janak Raj Kuari ' do appear to have been written with a different pen. Another strong circumstance is that if the writer had intended to write a long name, he would have commenced the writing from a point close to the margin on the left hand side as he has done in regard to the other entries, and would not have left a blank space on the left side with the result that the name had to go on to the next column. Again instead of writing the longer word below the name which would have aroused suspicion he preferred to continue the entry right up to the third column. The letters which stand for N and J do not resemble the letters used in other parts of the same line. The learned Subordinate Judge was not satisfied that this addition was a genuine entry. It may in this connexion be noted that the defendant Rajdeo Singh is a member of the District Board, Ballia, which is running this village school, and that the school master whose name also is Basdeo Singh is of the family of the defendants. The writer of this entry Sobha Singh said that he had written both the entries and offered an explanation as to why there was some difference in the writing. We have compared his signature on his deposition in the case with the writing of the entry in the register and we find that there is dissimilarity between the two. All these suspicious circumstances in our opinion make it impossible to rely on this entry.

6. The defendants also caused some confusion so far as the marriages of the daughters of Ram Kishun Singh were concerned, and it seems to us that they could not definitely make up their minds at the time when the mutation case was fought out. At that time the suggestion was that Ram Kishun Singh's daughter was one Mt. Marchhia and another daughter was Mt. Amiria. In the civil suit Marchhia's name has now been dropped and it is not suggested where Mt. Amiria had been married. The plaintiff's case has always been that Mt. Jageshra Kunwar had two daughters, Mt. Janak Raj Kunwari and Mt. Gulabo who were married to Kashi Nath and Katwaru, sons of Bechan Singh of village Athnarzooila in the District of Azamgarh. The learned Subordinate Judge who heard the evidence has believed the plaintiff's evidence and rejected the defendants' evidence. We are unable to say in appeal that he has taken a wrong view. We accordingly hold that it has been established that the present plaintiff Mt. Janak Raj Kunwari is the daughter of the deceased Basdeo Singh and is not the daughter of Ram Kishun Singh.

7. The only other point that arises in this case is whether the plaintiff is entitled to succeed to the estate of Basdeo Singh. Now the defendants' case has all along been that Basdeo Singh had left a posthumous son as his heir and that Mt. Manbasi became entitled to the estate as the grandmother. The same case was sot up in the civil suit. On the other hand the plaintiff's case has been that there was no such posthumous son. But the revenue Court did not believe this story. A copy of the birth register shows that a posthumous son was born to Basdeo Singh, which supports the defendants' case. It may therefore be assumed against the plaintiff that she had a brother who was born after Basdeo Singh's death.

8. But in our opinion under the law as it now stands this circumstance would make no difference. The Hindu Law of Inheritance (Amendment Act 2 of 1929) now makes a sister as one of the heirs of a deceased Hindu owner. The learned Counsel for the defendants has urged before us that this Act applies only to such cases where the Hindu owner dies after the coming into force of the Act and would therefore not be applicable to the present case where admittedly Basdeo Singh and even his posthumous son had died before the Act came into force. We however find that the object of the Act was to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate. This appears from the preamble. Further, under Section 2 a sister is entitled to rank in the order of succession next after a father's father and before a father's brother. The whole object of the Act, as well as the language employed, shows that the intention of the legislature was to allow a new class of persons ' to succeed by inheritance ' to the estate of a deceased Hindu. Obviously in the presence of the grandmother the sister could not succeed. She would then be only a contingent reversioner. It seems to us that the right to succeed would accrue when succession opened, namely, when Mt. Manhasi, the grandmother, died, and not when the last male owner died in 1914. In this view the plaintiff is entitled to succeed as the heir of the posthumous son of Basdeo Singh, even if such son was actually born. We accordingly dismiss this appeal with costs.


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