Skip to content


Musammat Sarasuti TewarIn Vs. Musammat Nandan and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in60Ind.Cas.99
AppellantMusammat Sarasuti Tewarin
RespondentMusammat Nandan and ors.
Excerpt:
.....simple reason that, in our opinion, the decision of the issue between the defendants as to whether brij kishore was the son of shish-mal prasad or not was quite unnecessary, and it is impossible for us on appeal to can't her the declaration that she seeks. this, in our opinion, is the only modification of that decree which is necessary, because the decree of the court below distinctly lays down that in default of payment the amount shall be repairable by the sale of the property left by the deceased in possession of any defendant and none of that defendants is personally liable for the amount. ' the rest of the decree will stand good the appeal practically fails. in the circumstances of the case, we follow the good example set by the court below and make each party pay his own casts, as..........other hand, pleaded that a son had been born to her after the death of her husband whose name was brij kishore and that, under the hindu law, brij kishore, was the owner of the entire estate and that she was not liable, and that if she were in possession it wbs on behalf of the infant son who was the real owner of the estate. it may be noted here that on the death of shishmal prasad the names of the two widows were entered each against half of the estate and, according to the judgment of the court below, the elder widow, musammat sarasuti, is in possession of one half and the other widow is in possession of the other half. after musammat ramjota's defence had been filed brij kishore was added as a party and the plaintiff amended her plaint by an addition to paragraph 6 in which she.....
Judgment:

1. This appeal arises out of a suit brought by one Musammat Nandar, the mother of a deceased Hindu, Shishmul Prasad, who died on the 9th of July 1912. She brought a suit originally against the two widows of her deceased son, namely, Musammat Sarasuti and Musammat Ramjota, and she claimed her maintenance as the mother of the deceased. Musammat Sarasuti practically did not contest her claim except as to the amount which was demanded. Musammat Ramjota, on the other hand, pleaded that a son had been born to her after the death of her husband whose name was Brij Kishore and that, under the Hindu Law, Brij Kishore, was the owner of the entire estate and that she was not liable, and that if she were in possession it WBS on behalf of the infant son who was the real owner of the estate. It may be noted here that on the death of Shishmal Prasad the names of the two widows were entered each against half of the estate and, according to the judgment of the Court below, the elder widow, Musammat Sarasuti, is in possession of one half and the other widow is in possession of the other half. After Musammat Ramjota's defence had been filed Brij Kishore was added as a party and the plaintiff amended her plaint by an addition to paragraph 6 in which she says: If in the opinion of the Court Brij Kishore be deslared to be the son and heir of Shishmal Prasad and the possession of Musammat Ramjota as the guardian of Brij Kishore, minor, be proved over the property of Shishmal Prasad, dead Bed, then the plaintiff is entitled to get maintena and a house for her residence from defendant No. 3 'The Court below went into the question of whether Brij Kishore was not the son of Shishmal Prasad. Musammai Sarasuti strongly denied the allegation. The issue was one really bet were the to defendants and the Court hold in favour of Kishore, It passed a decree for maintenance allowance at the rate of Rs. 144 a year against the defendants. The decree goes on to say; 'that the amount shall be payable by Brij Kishore, defendant, in two equal instalments i.e, Rs. 72 on 1st January and Rs. 72 on the 1st July of every calendar year. In case of default of payment the amount shall be recoverable by the sale of the property left by Shishmal Prasad in possession of any of the defendants. None of the defendants shall be personally liable for the amount. The plaintiff shall also be entitled to reside as of right in the house situated in Mauza Bishanpura. 'The rest of the plaintiff's claim in respect of her ornaments was dismissed. The only parson who has appealed against this decree is Musammat Sarasuti. The only plea that she raises on appeal is, that the finding of the Court below that Brij Kishore who is the posthumous son of Shishmal Prasad, is wrong and it asks this Court on appeal to declare that be is not his son and grant such other relief as the Court may deem fit. It seems to us that the appeal must practically fail for the simple reason that, in our opinion, the decision of the issue between the defendants as to whether Brij Kishore was the son of Shish-mal Prasad or not was quite unnecessary, and it is impossible for us on appeal to can't her the declaration that she seeks. It comes to this that the heirs of Shishmal Prasad and certain persons claiming to be the heirs of Shishmal Prasad disputing among themselves; half the estate is in the possession of one widow and the other half is in the possession of the other widow either for herself or on behalf of Brij Kishore. The Court below has given the plaintiff her relief. It was quite unnecessary to go into the point about the parentage of Brij Kishore. it was simple and easy for the Court to say that the plaintiff was entitled to a decree for maintenance as against all the defendants among whom one at least must be a legal heir. The disputing parties being in possession each of one half of the estate the Court could easily have gone on to say that it would make the sum due payable by the parties in proportion to the share of estate in the possession of each party and in case of default the decree could easily have gone on to say that the amount duo would be a charge upon the estate and be recoverable by the sale of the estate. We do not think it was necessary to declare that the amount was payable by Brij Kishore. We think that the proper decree which the Court below ought to have passed was, that the amount should be payable bf any one or more of the defendants who is in possession of the estate in proportion to the extent of the estate in his or her possession, and on the dates fixed by the Court below. This, in our opinion, is the only modification of that decree which is necessary, because the decree of the court below distinctly lays down that in default of payment the amount shall be repairable by the sale of the property left by the deceased in possession of any defendant and none of that defendants is personally liable for the amount. We, therefore, modify the decree of High Court below to this extent. The words Brlj Kiahore in two equal installments, i.e., Rs. 72 on the 1st of January and Rs. 72 on the 1st of July on every calendar year' be struck out and in lieu thereof shall be entered the words the amount shall be payable by any one or more of defendants on the 1st of January and 1st of July of each calendar year in proportion to the extent of the estate of Shishmal Prasad in his or her possession.' The rest of the decree will stand good the appeal practically fails. In the circumstances of the case, we follow the good example set by the Court below and make each party pay his own casts, as it is evident that this litigation has been brought with a view to testing an issue which does not arise in the case itself.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //