1. This appeal arises out of a suit in which the plaintiff claims a declaration of her right to certain immoveable property enumerated in lists A and B appended to the plaint. The plaintiff Musammat Ranika Kunwar is one of the three daughters of one Kadher Mal, who died on the 15th of March 1904. Kadher Mal left a widow Musammat Pran Kunwar, the mother of the three daughters. Upon Kadher Mal's death Pran Kunwar was in possession of his estate. She purchased certain property, which is the property specified in list B, out of the savings of the property to which she had succeeded as heir to her husband. The property entered in list A is the property which had belonged to her husband and was in her possession as his heir. She died at the end of 1911 or the beginning of 1912. At that time the three daughters were alive, of whom the defendants Nos. 1 and 2 were married and the plaintiff was unmarried. The plaintiff contends that she succeeded to the whole of the property by reason of her being the unmarried daughter of her father and that she had preference over her sisters who were married at the date of their mother's death. Musammat Pran Kunwar made a Will on the 1st of November 1911, under which she gave one-third of all the property comprised in the two lists A and B to the three daughters in equal shares, save one item of property which she gave to the defendant No. 3 for his life only. This property is one of the villages mentioned in list B which Pran Kunwar had acquired after her husband's death.
2. The suit was contested on the ground that the plaintiff had no preferential right to succeed, that she alone was rot entitled to the property in list B, that there was some property which stood in the name of Kadher Mal which in reality belonged to his brother, Tula, and that the plaintiff could not claim that property. The Court below was of opinion that the plaintiff as an unmarried daughter had preference over her married sisters and was entitled to succeed, but the learned Subordinate Judge dismissed the suit under Section. 42 of the Specific Belief Act on the finding that the plaintiff was not in possession of the whole of the property. He overlooked the fact that the plaintiff is the lambardar and is in actual possession of the property according to the allegations of the defendants themselves. The learned Subordinate Judge thinks that because the plaintiff gave some of the profits of the property to her sisters, she must be deemed to be out of possession. We are unable to follow this reasoning, and in our opinion it is wholly erroneous. The plaintiff being in actual possession of the property, all that she could claim in this suit was a declaration of her alleged title. The title she set up was that she was solely entitled to succeed to the property, and had in fact so succeeded, and that the defendants had improperly cast a cloud on her title by setting up a title in themselves. If we had to decide the case on this ground alone, we should have to reverse the decision of the Court below and remand the case to that Court for trial of the other issues. But as evidence had been taken on those issues, we have considered the whole ease, and we think we should decide it both on the question of law and on the questions of face which have been raised in the ease. The question of law which arises is whether the plaintiff is entitled to succeed in preference her sisters by reason of her being unmarried at the date of her mother's death. It is admitted that since her mother's death she has been married. It is settled law that succession to the property of a deceased person, whose estate had passed to his widow upon his death, opens out at the date of the death of the widow, and the persons who succeed on that date are the persons who would have succeeded to the estate of the deceased had he died on the date of the widow's death. The persons who were alive at the date of Pran Kunwar's death, were her three daughters, and it is in respect of these persons that we have to consider whether any of them had preference over another. Durga Kunwar had been married after the death of her father but at the date of the mother's death she was a married daughter, and the only daughter who was unmarried on that date was the plaintiff Musammat Ranika Kunwar Therefore, if Kadher Mai had died in 1911 or 1912 (when Pran Kunwar died), the property would have passed solely to the plaintiff and not to either of her sisters. The Court below was right in holding that the plaintiff alone was entitled to the property left by her father We are unable to agree with the contention put forward on behalf of Durga Kunwar that in considering who were the heirs to the estate, we should take into account the date of Kadher Mai's death and declare the persons who would have succeeded to the property on that date to be entitled to succeed upon the death of his widow. In this view the plaintiff is solely entitled to the property mentioned in list A. As for the property mentioned in list B, which was acquired subsequently to the death of Kadher Mai by Pran Kunwar out of the savings to which she was absolutely entitled, we have to see whether Pran Kunwar intended that property to form part of her husband's estate. If she did so, and treated the property as an accretion to the estate of her husband, it would go to the heirs of the husband like any other property left by him. In this case it is clear that she, never intended the property acquired by her after her husband's death to he deemed to be a part of her husband's estate, The very fact pi her making a Will, in regard to, this property, and apparently treating it, as she described it in the Will, as her stridhan is clear indication of her intention in this behalf. This being so, she had full power of disposal in respect of this property and it must; be divided between, the three daughters; of Pran Kunwar to whom she devised, if under the Will in equal shares, It was contended on behalf of the defendant that Kadher Mal had in his lifetime made an oral Will, under which he directed that all his property should be divided between the three daughters; The evidence as to this oral Will is of the flimsiest description. Three witnesses were Called to prove the alleged oral Will, but we are unable to place any reliance on their statements which are also very vague. It appears that in 1906 Pran Kunwar filed & written statement in which she distinctly stated in paragraph 5 that her husband had' made no Will (see page 1, respondent's second book). This clearly contradicts the allegation as to the making of any Will by Kadher Mai. Furthermore, in her own Will, which she executed on the 1st of November 1911, she made no reference to any oral Will of her husband. These circumstances strongly negative the allegation as to the making of an oral Will by Kadher Mal. The only other question is whether any part of the property claimed by the plaintiff belonged to Tula Ram. On this point there is a total absence of evidence.
3. The result, therefore, is that the plaintiff's claim should be decreed as regards the property mentioned in list A and as regards one-third of the property mentioned in list B. We allow the appeal, set aside the decree of the Court below and in lieu thereof make a decree declaring the plaintiff's right to all the property mentioned in list A and one-third of the property mentioned in list B appended to the plaint, save and except the property of which a gift was made in favour of Chadammi Lal. The parties will pay and receive costs in both Courts; in proportion to failure and success and: the costs of this Court will include fees on the higher scale.