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Kunwar Bahadur and ors. Vs. Madho Prasad and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1919All223(1); 49Ind.Cas.620
AppellantKunwar Bahadur and ors.
RespondentMadho Prasad and ors.
Excerpt:
hindu law - ancestral and, self-acquired property--sons living (separately from father, whether entitled to inherit. - - but it must clearly be borne in mind that this property was property which they did not acquire from asharfi......this property put into a separate mahal. there is no finding that asharfi ever separated from his sons the defendants, in the sense that there was a partition between them, or that the defendants got their share of the ancestral property and thereupon severed themselves from the family. it seems to us that if the property was ancestral property in the hands of asharfi, then it would remain joint ancestral property, and the defendants upon the death of asharfi would be entitled on partition to their share of it. if, however, we accept the finding of the court below that the property was self-acquired property of asharti, upon his death all his sons including the defendants would be entitled and the mere fact that some of these sons continued to live in his house joint in food with him.....
Judgment:

1. This appeal arises out of a suit for possession. It appears that a man of the name of Asharfi Lal married no less than four times. He had issue by all four wives and sons by three. When Asharfi Lal died, the defendants are alleged to have gone into possession of one-third of the property left by Asharfi. The plaintiffs thereupon instituted the present suit. Their claim is certainly somewhat peculiar. It is alleged that the plaintiffs lived jointly with their father and that the defendants were separated from their father. But it is clear that even if this were so, the plaintiffs could not succeed in their present suit if we assume that the property belonged to Asharfi. The facts as found by the Court below seem to be as follows. Asharfi having married a number of times, the defendants (who were the sons of the first wife) left the house. They had got a small property from Musammat Bakhta Kunwar, who was the widow of their grandfather's brother. But it must clearly be borne in mind that this property was property which they did not acquire from Asharfi. The defendants not only ceased to reside in their father's house but they maintained themselves upon the property which they had acquired in the manager just mentioned. They even went so far as to get this property put into a separate Mahal. There is no finding that Asharfi ever separated from his sons the defendants, in the sense that there was a partition between them, or that the defendants got their share of the ancestral property and thereupon severed themselves from the family. It seems to us that if the property was ancestral property in the hands of Asharfi, then it would remain joint ancestral property, and the defendants upon the death of Asharfi would be entitled on partition to their share of it. If, however, we accept the finding of the Court below that the property was self-acquired property of Asharti, upon his death all his sons including the defendants would be entitled and the mere fact that some of these sons continued to live in his house joint in food with him would not deprive the sons who were living away from him of their share in his estate, We think that the decree of the Court below cannot be supported. We allow the appeal, set aside the decree of the Court below and dismiss the plaintiffs' suit with costs in both Courts.


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