1. This is a plaintiffs' appeal arising out of a suit for recovery of possession of certain immovable properties against the defendant Jai Kishun who is in possession. These properties were left by one Mt. Mungi Bahu, the widow of Gangadhar. The plaintiffs claim to be the bandhus of Gangadhar deceased and allege that there are no sapindas or samanodaks or sakullyas of the deceased alive and that they are his nearest heirs. The contesting defendant is the son of Mt. Mungi Bahu's own brother and would not be an heir to the estate if it was a Hindu widow's estate in the hands of Mt. Mungi Bahu.
2. The defendant denied the pedigree set up by the plaintiffs and further denied that there was no nearer heir alive in the family of Gangadhar. He also asserted that Gangadhar had made an oral will in favour of his wife Mt. Mungi Bahu who in her turn had bequeathed this property to the defendant of which he had become an absolute owner. The learned Subordinate Judge came to the conclusion that the plaintiffs had succeeded in establishing that they were the nearest bandhus of Gangadhar deceased, but he held that it was clear on the evidence that there were some samanodaks of Gangadhar alive and accordingly the plaintiffs were not the heirs to the estate. In view of his finding he did not consider it necessary to go into the other issues which were raised in the case. The plaintiffs come up in appeal and challenge the finding of the Court below that there are in existence nearer heirs to exclude them.
3. Taking up the point raised in the appeal itself first, we may mention that although the defendant in his written statement had not admitted the plaintiff's allegation that there were no sapindas, samanodakas or sakullyas of Gangadhar alive, he did not specifically mention the name of any person whom he alleged to be a nearer heir, nor did he give any particulars. Even on the date when the issues were framed the defendant was not in a position to give the name of any supposed nearer heir. In February 1924 an application was made on behalf of the defendant to summon two witnesses Mt. Shama Bai and Chhote Lal of Ahmedabad on commission. But and even then it was not mentioned that Chhote Lal was a nearer heir. When one of the plaintiffs Prem Nath was in the witness-box a question was put to him whether he knew Chhote Lal of Ahmedabad to which he replied that he did not know him. Even at that stage it was not definitely suggested on behalf of the defendant that Chhote Lal was a collateral who might inherit. After the plaintiffs' evidence was closed the defendant examined himself as his own witness, and he then stated that after the settlement of the issues he learnt from Mt. Shama Bai that Chhote Lal of Ahmedabad belonged to the family of Gangadhar. The statement of Jai Kishun was not based on any personal knowledge of his own but on what he had heard from Mt. Shama Bai. Mt. Shama Bai was examined on commission but the learned Subordinate Judge did not allow the defendant's application for the examination of Chhote Lal. We shall come to this point later on. Mt. Shama Bai no doubt gave a pedigree different from that set up by the plaintiffs and if her statements were believed the plaintiffs would not even be the bandhus of Gangadhar. As regards Chhote Lal her statement was that Bapuji was related to Gangadhar as a distant brother of the same gotra. The evidence of the defendant himself was that Bapuji was the name of the father of Chhote Lal. Mt. Shama Bai did not state that Bapuji's son was related to Gangadhar within 14 degrees. She did not remember the name of Bapuji's father as she had not seen him. In cross-examination she admitted that she was not on friendly terms with the plaintiffs but was on bad terms with them and that there had been ill-feeling between herself and their father and uncle for a long time, in fact from the time of Data Ram, her grandfather-in-law. One of the plaintiff's witnesses Parshotam Jani in cross-examination stated that his great-grandfather was the brother of Ram Nath, the ancestor of Gangadhar. On this evidence the learned Subordinate Judge recorded a finding that the existence of samanodaks such as Parshotam Jani and Chhote Lal was proved, which disentitled the plaintiffs from instituting this suit.
4. The learned Judge did not apparently realize that Parshotam Jani's relationship with Ram Nath would not make him a samanodak of Gangadhar who was related to Ram Nath through a female and that Parshotam Jani would merely be a bandhu remoter than the plaintiffs according to the latter's allegation. His finding that the existence of Parshotam Jani is a bar to plaintiff's case cannot be supported at all. Parshotam Jani himself appeared as a witness for the plaintiffs and did not put forward any claim based on his supposed title.
5. As regards Chhote Lal, the evidence as it stands on the record is legally insufficient to prove that he was a samanodak of the deceased Gangadhar. All that we know is that Chhote Lal is the son of Bapuji. The defendant does not go further than that. We do not know the name of Bapuji's father and grandfather and we have not got a complete pedigree connecting Bapuji with Gangadhar. The solitary statement of Mt. Shama Bai who is admittedly not on good terms with the plaintiffs is that Bapuji was related to Gangadhar as a distant brother of the same gotra. That by itself is not sufficient to prove that Chhote Lal and Gangadhar were related to each other within 14 degrees. The finding of the Subordinate Judge that this fact is established cannot therefore be accepted.
6. No doubt the burden lay on the plaintiffs in the first instance not only to establish their pedigree but to prove that to the best of their knowledge and belief no nearer heir existed. The plaintiffs have led prima facie evidence in support of their case which shifted the burden on the defendant. Their witness Govind Ram stated that excepting the plaintiffs there were no sapindas, samanodaks or sakullyas of Gangadhar's family living. Similarly another witness Gauri Shanker states that in the family of Ballavji, Gurji and Gangadhar there is no nearer relation than the plaintiffs. The plaintiffs cannot be expected to prove the negative by direct evidence. We are therefore of opinion that the evidence of these two witnesses of the plaintiffs were sufficient to discharge the burden which lay on them initially and to shift the burden on the defendant. If the defendant wanted to establish that there was a nearer heir it was his duty to name him and to prove that he was in fact nearly related.
7. Before the evidence commenced the defendant applied to the Court that Chhote Lal be examined on commission after the plaintiff's evidence had been closed. He did not suggest in the application in express language that if the Court was not prepared to examine Chhote Lal after the plaintiff's evidence was closed he might be examined at an earlier stage, nor did he disclose in his application that Chhote Lal was the person who was a nearer heir than the plaintiffs. The Court merely passed the order that the application should be put up for orders after the plaintiffs' evidence had been closed. The plaintiffs' evidence was concluded on 18th August 1924 and thereafter the defendant's evidence began. On 20th August the defendant's pleader made a statement that he had concluded his oral evidence except the evidence of the two witnesses Mt. Shama Bai and Chhote Lal whom he asked to be examined on commission. Mt. Shama Bai was at that time living in the Benares City and was a pardanashin lady who could not be compelled to appear in Court. Chhote Lal on the other hand was residing at Ahmedabad in Gujrat outside the limits of the jurisdiction of the Subordinate Judge. On 20th August the learned Judge granted the plaintiffs' prayer that Mt. Shama Bai be examined on commission, but he refused the application so far as Chhote Lal was concerned. Unfortunately the learned Judge has given no reasons showing why he did not permit the examination of Chhote Lal on commission. It is not necessary to speculate what might have been in his mind, but it is possible that he thought that the examination of Chhote Lal would involve considerable delay. As Shama Bai had not been then examined, he could not have felt satisfied that Chhote Lal's relationship had been established and that there was no necessity to examine him.
8. The learned advocate for the respondent has urged before us that Chhote Lal should now be ordered to be examined on commission. After considering the matter carefully we have come to the conclusion that now it is too late to order the examination of Chhote Lal. The defendant did not word his application properly, and did not ask the Court to decide whether Chhote Lal's examination would be ordered after the plaintiffs' evidence had been closed. He took the risk of having his application refused after the plaintiffs' evidence was concluded. Further more the examination of a witness on commission as provided under Order 26, Rule 4, stands on a slightly different footing from the issuing of summons to a witness under Order 16, Rule 1. In the former case the matter is in the discretion of the Court, whereas in the latter case summonses are to be issued as a matter of course, though the Court may not permit an adjournment of the case if the application is made too late. The defendant therefore had not an absolute right to get the witness Chhote Lal who was residing in Gujrat examined on commission. The learned Judge has refused his application. At the time when the learned Judge had passed his order in, February 1924 that the application should be put up for disposal later on, he undoubtedly was not aware that the evidence of Chhote Lal would be particularly important or that he would be put forward as the nearer heir to the estate. Even up to 20th August 1924 Mt. Shama Bai, whose evidence alone could be legal evidence, had not been examined and the defendant's statement was based on a mere hearsay.
9. Having regard to all these circumstances we do not think that we should at this stage order this fresh evidence to be brought on the record. The result therefore is that there is no legally sufficient evidence on the record to establish that there is any sapinda, samanodak or sakullya within 14 degrees of Gangadhar who would be a nearer heir to the estate than the plaintiffs in case the latter have proved their pedigree.
10. The learned advocate for the defendant has sought to support the decree of the Court below by challenging the finding that the plaintiffs' pedigree has been established. (Here the judgment discusses evidence and concluded). The result therefore is that we must accept the finding that the plaintiffs' pedigree has been established by the evidence.
11. Chhote Lal whose rights are set up by the defendant is not a party to the suit and had not even been examined as a witness. There is nothing to prevent him if he is a nearer heir from instituting a suit against the successful party to the suit specially as several years still remain before limitation will expire. But unless the defendant succeeds in establishing that by two successive oral wills he had acquired the property as an absolute owner, he would be a stranger to the family and a trespasser. As between him and the plaintiffs it has now been found that the plaintiffs are the nearest bandhus and the defendant is not an heir at all. The plaintiffs would therefore be entitled to a decree unless the bequests are proved.
12. The learned Subordinate Judge disposed of only the first issue out of five which had been framed and left the others undecided. As the first issue was the main issue in the case and not a preliminary one we think it is necessary that we should call for findings on the remaining issues under Order 41, Rule 25, before finally disposing of this appeal.
13. We accordingly direct the Court below to record findings on issues 2 to 5 mentioned in the judgment of the Court below and return those findings within two months from this date. No fresh evidence will be allowed. The order as to costs will be passed after the findings have been returned.
14. The findings have been returned and they are in favour of the respondent. Objections have been filed to these findings.
15. The evidence adduced by the defendant to prove that Gangadhar had made any oral will in favour of Mt. Mungi Bahu is unreliable. The will is said to have been made 40 years ago. The evidence in support of it consists of the statement of three witnesses. During all these 40 years there is not the slightest documentary evidence to indicate that any such will was in existence. The learned Subordinate Judge has pointed out some discrepancies in the statements of these three witnesses. He had the opportunity of hearing them and marking their demeanour. He was not impressed by their evidence and has rejected it. We have examined that evidence and we are unable to take a contrary view. It must therefore be held that the oral will got up by the defendant is not established.
16. It follows that Mt. Mungi Bahu, had no authority to make any will in favour of the defendant. As a matter of fact the evidence to prove such an oral will by the lady in favour of the defendant is also unsatisfactory, and the learned Subordinate Judge has rejected it We accept his finding on this point also.
17. The next question that remains is whether the house in mohalla Bhairon Baoli, which has purchased by Mungi Bahu, can be claimed by the defendant. The house was purchased under a sale-deed dated 4th July 1903 for a sum of Rs 600. This sum consisted of Rs. 500 advanced by her previously and a sum of Rs. 100 paid at the time There is absolutely no evidence on either side to show where she had got the money which she advanced as a loan in the first instance, and where she got Rs. 100 from. The learned Subordinate Judge remarks that in the year 1885 she had sold a house of her husband for Rs. 2,000. The house in dispute was purchased 18 years after 1885, nevertheless the learned Subordinate Judge has said:
It is difficult to trace the source of the money out of which the house in dispute was purchased, but one thing is clear and that is this that she had Rs. 2,000 in hand out of her husband's estate, and she could therefore very well manage to save Rs. 600 out of that to purchase the house in dispute even after a lapse of 18 years
18. We find it very difficult to assume that Rs. 600 remained in the hands of the lady after the lapse of 18 years, and that it is with that amount that she must have purchased this house. This circumstance must accordingly be ignored. There is therefore no evidence either way The learned Subordinate Judge has held that it was for the defendant to prove that the money did not come out of the income of the husband's estate No authority has been cited before us in support of the contention that there is any pre sumption that the money in the hands of the lady is presumed to come out of the savings of her husband's estate. Cases have been cited which show that where it is known that property was purchased out of the savings, it would be treated as accretion to the estate, if it had not been disposed of before the widow died. Those cases are distinguishable. The only case which is at all applicable is the case of Dakhina Kali Debi v. Jagadishwar Bhuttacharjee  2 C.W.N. 197, and that is in favour of the defendant, and shows that there is no such presumption in law. The case of Diwan Ran Bijai Bahadur Singh v. Indarpal Singh  26 Cal. 871, also suggests that there is not any general presumption that the widow can own no property herself. We accordingly think that in the absence of any evidence to show the contrary, it must be held that the plaintiffs have failed to establish that the said house was acquired out of the savings of the widow's estate. Their claim as regards this house should accordingly be dismissed.
19. The last question was whether the defendant had any movables in his possession which were part of the widow's estate. The evidence to prove the existence of such movables is worthless and has been rejected by the Court below. We accept that findings and hold that there is no such proof. The appeal is allowed in part, and the decree of the Court below is set aside, and a preliminary decree in favour of the plaintiffs is passed as follows: The claim for the properties in Sons. 1 and 3 be decreed and that in Schs. 2 and 4 dismissed. The plaintiffs are further entitled to mesne-profits from May 1921 to December 1923 as well as pendente lite and future mesne profits till delivery of possession. The Court below will ascertain the amount of the mesne-profits to which the plaintiffs are entitled and pass a final decree. Parties will pay and receive costs in proportion to success and failure in both the Courts.