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Ram Sumeran Das and ors. Vs. Kodai Das and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1932All117
AppellantRam Sumeran Das and ors.
RespondentKodai Das and ors.
Excerpt:
- - 4. a considerable amount of evidence has been given for the plaintiff in support of the pedigree, and although some of this evidence is not very reliable as is common in these cases, we consider that in view of the fact that the pedigree was not disputed in the mutation case of 1915, the pedigree has been proved. now it is difficult to obtain reliable oral evidence in regard to an event which occurred before the year 1860, that is some 67 years prior to the suit. the plaintiffs' suit therefore would fail on this ground. we consider that the plaintiff has failed to prove that he obtained possession of the property in suit after the death of mt. accordingly the plaintiff's case would fail because he brought his suit more than 12 years after the death of mt......raj pur dubi. the plaint was accompanied by a pedigree and the claim of the plaintiff was that one sant bakhsh was the last owner of the property in dispute, that sant bakhsh died a separated hindu before the settlement of 1860 and that sant bakhsh was succeeded by his two widows of whom one died shortly afterwards and the other widow mt. biranja died at the end of december 1914. the plaintiff claimed that on the death of mt. biranja the plaintiff obtained possession of the property in dispute and that a mutation order was passed in his favour on 2nd august 1915. but that order was subsequently set aside on appeal and the opposite party, defendants 1 and 2, kodai das and sat narain, who are the grandsons of pargash, the brother of sant bakhsh, obtained possession. the suit was brought on.....
Judgment:

Bennet, J.

1. This is a first appeal brought by the representatives of the deceased plaintiff Ram Sumeran Das against a decree of the learned Additional Subordinate Judge of Gorakhpur dismissing the suit of the plaintiff for possession of certain zamindari property in five mahals of villages Mirpur, Madroha, Keotlaha and Raj pur Dubi. The plaint was accompanied by a pedigree and the claim of the plaintiff was that one Sant Bakhsh was the last owner of the property in dispute, that Sant Bakhsh died a separated Hindu before the settlement of 1860 and that Sant Bakhsh was succeeded by his two widows of whom one died shortly afterwards and the other widow Mt. Biranja died at the end of December 1914. The plaintiff claimed that on the death of Mt. Biranja the plaintiff obtained possession of the property in dispute and that a mutation order was passed in his favour on 2nd August 1915. But that order was subsequently set aside on appeal and the opposite party, defendants 1 and 2, Kodai Das and Sat Narain, who are the grandsons of Pargash, the brother of Sant Bakhsh, obtained possession. The suit was brought on 4th January 1927.

2. Four questions have arisen in appeal. Firstly, whether the pedigree set up by the plaintiff is proved.

3. Now in the mutation proceedings of 1915, the plaintiff claimed on the same pedigree and it is apparent on the orders of the Sub-divisional Officer and of the Collector in appeal that the defendants did not take any objection to the accuracy of the pedigree there set forth. In the present suit the defendants have denied the accuracy of the plaintiffs' pedigree so far as it alleges that there is a connexion between the family of the plaintiffs and the family of the defendants and the defendants have given evidence that the plaintiff is not connected with their family and this evidence has been supported by the grandnephew of the plaintiff and some other members of the family according to the pedigree of the plaintiff. Reference to settlement statements of 1839 and 1860 indicates that the early settlement of these villages, such as Mirpur when they came under cultivation, was made with three persons: Sahabdin, Brij Mohan and Guptar Das. Sahabdin is a brother of Sant Bakhsh; Brij Mohan represents their branch of the family in the pedigree of the plaintiff and Guptar Das is the father of the plaintiff. The contention of the plaintiff that these three persons all belonged to one family is supported by the fact that these three members were the first persons to settle in this village.

4. A considerable amount of evidence has been given for the plaintiff in support of the pedigree, and although some of this evidence is not very reliable as is common in these cases, we consider that in view of the fact that the pedigree was not disputed in the mutation case of 1915, the pedigree has been proved.

5. The second point which we have to consider is whether on the pedigree as it stands and with the assumption that Sant Bakhsh died as a separated Hindu, has the plaintiff a claim to succeed as heir of Sant Bakhsh which is preferential to the claim of Kodai Dae and Sat Narain defendants 1 and 2? This is a pure question of law, and Gour's Hindu Code of 1929, p. 1332, gives a table which is admittedly-correct, and in this table the plaintiff comes as No. 19 in the class of heirs whereas defendants 1 and 2 come as No. 29 in the class of heirs. The learned Subordinate Judge has made a mistake in regard to this and has held that the defendants have a preference over the plaintiffs. As the point is of some importance, we may briefly refer to it. The lower Court relied on Kalian Rai v. Ram Chandar [1901] 24 All. 128 in which a different question was before the Court and on p. 135 there was an observation which has been quoted by the lower Court that

it may be that the line of each ancestor of the deceased should be continued down to the seventh person.

6. The table however in the Hindu Code of Dr. Gour is in our opinion correct and it shows that this observation is not correct. From the propositus, the line of the brother should be followed down to the brother's son and brother's grandson and then the inheritance will pass upwards to the grandfather's wife and the grandfather and after some other relations the inheritance will go to the grandfather's son (the brother of the father) and continue to the grandfather's grandson and great-grandson. This statement of law made by Dr. Gour is in accordance with a ruling of their Lordships of the Privy Council in Buddha Singh v. Daltu Singh A.I.R. 1915 P.C. 70. Now the grandfather's grandson in the present case is the plaintiff and he stands as No. 19 as against the defendants who are No. 29. 'We accordingly decide this point in favour of the plaintiff, that on the pedigree and on the assumption that Sant Baksh died as a separated Hindu that he would have a preferential claim over defendants 1 and 2 who are Sant Baksh's brother's great-grandsons.

7. The next question which we have to consider is whether Sant Bakhsh and his brothers Sahibdin Das and Pragas Das were joint or separate. Now it is difficult to obtain reliable oral evidence in regard to an event which occurred before the year 1860, that is some 67 years prior to the suit. There is however documentary evidence and there are admissions. In the mutation proceedings of 1915, the plaintiff Ram Sumeran Das made a statement in which he said that the husband of Mt. Biranji was Sant Bakhsh who was a cosharer in nineteen villages. The name of Mt. Biranji was entered in respect of five villages. The names of Debi Prasad and Nand Kishore were entered in respect of the remaining 14 villages. This statement indicates that the other two members of the family, Sant Bakhsh and Nand Kishore who were then surviving, were entered for 14 of the 19 villages on the death of Sant Bakhsh. Further, the plaintiff has made no claim in the present suit or in mutation for the 14 villages which have been in the possession of the members of the family of the defendants from the time of the death of Sant Bakhsh. The plaintiff is unable to explain why he did not bring his claim for all the 19 villages if his contention was correct that Sant Bakhsh died as a separated Hindu.

8. We consider that the fact that only 5 of the 19 villages were entered for the two widows of Sant Bakhsh is an indication that these five villages were given to them for their maintenance as Hindu widows in joint Hindu family and that it was not a case where they succeeded to a life estate as widows of a separated Hindu. There is also an order of mutation of 27th October 1863 based on a report of the Tahsildar of 30th September 1863 printed at pp. 44 and 45 of the paper book. This report states that in Mauza Keotlaha there was a 2 annas 8 pie share in the possession of Debi Prasad, Ram Sumeran Das, Ram Kirpal Das, son of Pragas Das, and the two widows of Sant Bakhsh in equal shares jointly, which was divided ;and nobody had any objection to that. 'The indication therefore would be that up to 1863 this share of the family of Sant Bakhsh and his two brothers was entered ointly and it was only some years after his death that there was a separate entry made for his two widows. It is also further noted in that report that the widows were not to have any power to transfer the property. We consider that the evidence shows that Sant Bakhsh died as a member of a joint Hindu family and that his widows merely held these five villages out of the 19 villages for their maintenance. Accordingly, on the death of the widows, the defendants who are members of the joint family to which Sant Bakhsh belonged, would have the right to retain the villages and the plaintiff who is a separated member from that family would have no right to claim these villages. The plaintiffs' suit therefore would fail on this ground.

9. The last point is one of limitation. The suit was brought little more than 12 years after the death of Mt. Biranji. The plaintiff relied for his suit being within 12 years of limitation on the allegation that he had been in possession after the death of Mt. Biranji until November 1915. In his statement made in mutation the plaintiff alleged that his son had made collections from four tenants and that he had taken possession of some rabi crop on the sir lands and reaped them. But he admitted that Ram Lal, the nephew of Mt. Biranji, was in possession making collections in February 1915 at the time the plaintiff made his deposition. In the civil case the plaintiff did not appear at all and merely sent his son to give evidence. The mutation case was filed immediately on the death of Mt. Biranji, and the Sub-divisional Officer notes that no question of possession arose. The plaintiff does not claim to have paid any land revenue and no receipts are produced. Two receipts are printed in the paper book which indicate that in June 1915 the son of the plaintiff collected some rent from two tenants. We consider that the plaintiff has failed to prove that he obtained possession of the property in suit after the death of Mt. Biranji. Accordingly the plaintiff's case would fail because he brought his suit more than 12 years after the death of Mt. Biranji.

10. In the result we consider that the plaintiffs' suit fails both on the ground of limitation and on the ground that Sant Bakhsh died as a member of a joint Hindu family along with the predecessors of the defendants then alive. Accordingly we dismiss this appeal with costs.


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