1. This appeal arises out of suit for possession. The plaintiff claimed to be entitled to the suit properties as the widow of one Maniram Misser and according to the plaintiff's case he was the reversionary heir to the estate of the last male owner of the suit properties named Guruprasad. The plaintiff's busband admittedly survived the widows of the last male owner; and if he was the nearest heir to Guruprasad on the date of the widow's death, it is not disputed that the plaintiff will be entitled to the property, subject to the other defences raised in the suit.
2. It was contended by the defendants that the plaintiff's husband was not the reversioner. This contention was based-upon two grounds one, that Guruprasad had left a will whereby his properties had been bequeathed absolutely to his two widows Rama Bai and Sona Bai; the other ground was that the plaintiff had not proved that her husband was the nearest heir and that there were no nearer heirs in existence.
3. As to the first question, it has been held by this Court, in a former stage of this litigation (in A.S. No. 132 of 1928) that even on the footing that the widows took an absolute estate under the will of their husband, the half share of the widow who died first, namely Rama Bai must be only deemed to have been inherited by the other as a co-widow and that notwithstanding the frame of the plaint the plaintiff was entitled to such relief as she could claim in respect of Rama Bai's half share. It was apparently then assumed that in respect of Rama Bai's half share, Sona Bai's heir would take only a limited interest; but the point was not definitely decided. Accordingly the appellant's learned Counsel in the course of his argument before us raised the contention that even in respect of Rama Bai's half share Sona Bai must be deemed to have taken an absolute interest that she was, therefore, competent to alienate it at her pleasure and that was no reversionary interest which plaintiff could claim as heir to her husband. It is sufficient to say that this contention is not tenable, in view of the decision of the Judicial Committee in Sheo Partab Bahadur Singh v. Allahabad Bank 25 A 476, (see also Agiswaraya Nandaji Saheb v. Sivaji Saja Saheb 49 M 116 : 92 Ind. Cas. 928 : AIR 1926 Mad. 84 : 49 MLJ 568, where it was taken as settled that a co-widow who succeeded as heir to the Stridanam property of a co-widow would take only a limited interest).
4. As to the proof that the plaintiff's husband was the nearest reversionary heir to the estate of Guruprasad, it was contended on behalf of the appellants that the evidence on the plaintiff's side was inadequate and did not establish that there were no nearer heirs in existence. As the learned Subordinate Judge points out, the evidence on the point is all one way and no suggestion has been made even in the course of cross-examination of the plaintiff's witnesses that there was any particular person in existence of whom it could possibly be said that he might be nearer heir. Mr. Visvananatha Sastri contends that the rule that a person claiming as a reversioner should prove not merely that he is an heir but that he is the nearest heir involves that the plaintiff must exclude the possibility of there being nearer heirs in existence. We do not think that this is a fair interpretation of the rule. It is only if on the evidence there is room for doubt as to the plaintiff being the nearest heir, the principle comes in that the Court must insist on strict proof that he is the nearest heir. The plaintiff is not expected to prove an absolute negative, in the sense of excluding the possibility of the existence of some unknown person who if he had existed might be a nearer heir. We, therefore, agree with the lower Court that the plaintiff has established her husband's title as reversionary heir to the estate of Guruprasad.
5. The next point argued on behalf of the appellant related to the binding character of the alienation in favour of the appellants by Sona Bai under the sale-deed Ex. II dated May 5, 1908. The sale purports to be for a sum of Rs. 9,000 out of which a sum of Rs. 150 was said to be 'due to Government in respect of a loan apparently taken under the Agriculturists' Loans Act and the whole of the balance is said to have been received in cash by Sona Bai. The document itself makes no reference to the purpose for which the money was received; nor does even the written statement filed in this suit give any particulars as to the existence of debts or the discharge thereof;. There is merely a vague, reference in the statement to decree debts and other debts. As pointed out by the lower Court, no evidence has been given as to the existence of any decrees or discharge thereof as a result of the suit sale. Some vague evidence has been attempted to be adduced through the few witnesses examined on the defendants' sides. We agree with the lower Court that the evidence is unreliable.
6. A point was made before us that the lower Court improperly rejected a Registration copy tendered on behalf of the defendants to prove the existence of a mortgage deed executed by the two widows in favour of the Mylapore Fund so as to support an argument that that debt is likely to have been discharged from out of the proceeds of Ex. II. Even if that document should be admitted in evidence, it seems to us, that it would not go far to help the defendants' case unless they had gone further and shown that the debt was discharged out of the proceeds of the suit sale. The evidence in the case undoubtedly shows that Sona Bai had made several alienations and the debt to the Mylapore Fund would, in all probability, have been discharged from some other course. There is no point in merely stating that Sona Bai and Rama Bai had at some time executed the mortgage bond in favour of the Mylapore Fund. The mere production of the copy seems to us, therefore, to be of no significance because it contains no endorsements whatever and the suggestion that it was discharged out of the proceeds of this sale merely rests upon oral evidence. On the other hand if the defendants seriously intended to prove that the proceeds of the suit sale had been utilised for the discharge of the debt due to the Mylapore Fund. there should have been no difficulty in getting at the books of the fund to prove the discharge of the debt at or about the time of the suit transaction, so as. at least to raise a presumption that the monies received under the suit sale might have been so utilised. We must, therefore, confirm the finding of the lower Court that in respect of Rama Bai's half share which Sona Bai must be deemed to have inherited only for a limited interest, the sale under Ex, II has not been shown to be binding on the reversioner.
7. Mr. Visvanatha Sastri finally raised a point that as Sona Bai was undoubtedly entitled to a half share in absolute right from out of the whole estate of her husband, the appellants should at least be given the equitable right to insist that the whole of the suit property might be allotted to Sona Bai's half share leaving the plaintiff to treat the other half of the estate as representing Rama Bai's share. Notwithstanding the several opportunities which the defendants have had to raise this contention, no such contention seems to have been raised either at the time when a new issue was framed by this Court when it remanded the former appeal, nor even when other issues were framed in the lower Court after remand. The respondent's learned Counsel points out that even in the grounds of appeal in the present appeal no such point has been taken. Apart from this objection, there is also the difficulty in the appellant's way that we have no materials on which it may be possible to ound an argument in support of such equity in favour of the appellants. It does not appear that the plaintiff or her husband got into possession of any property, on the footing that it was Rama Bai's property out of which the plaintiff can be asked to give effect to the alleged equity in the defendant's favour. The only other items of properties belonging to Guru-prasad's estate of which any information is derivable from the records are items which the plaintiff sued for on the footing that they belonged to Gurupasad's estate and her husband was entitled thereto as reversioner to Guruprasad's estate.
8. We also find that Sona Bai had alienated by sale or by will considerable portion of her husband's property if not the whole. We are thus not in a position to find any thing which will justify the claim that the suit property may fairly be allotted to Sona Bai's share, leaving the plaintiff in possession of an equal part as representing Rama Bai's share.
9. The result is that the appeal fails and must be dismissed with costs.
S. No. 62 of 1935.
10. This is an appeal against the final decree in the suit in which A.S. No. 171 of 1931 is the appeal from the preliminary decree. In pursuance of the direction in the preliminary decree, the suit properties were divided by a Commissioner and on lots being cast in Court, certain specific items were allotted to the plaintiff's share. At the time that these proceedings took place in the lower Court, the appellants did not care to appear. We see no ground on which we can now be asked to disturb the allotment as made in the final decree. The learned Counsel for the appellants reiterated in this appeal the claim for equitable adjustment as between the shares of the two widows so as to leave his clients in possession of the whole of the suit property. This contention has been dealt with in the judgment in A.S. No. 171 of 1934 and has been disallowed. The appeal, therefore, must also be dismissed with costs.