1. The plaintiff-appellant is the widow of one of four brothers, who, when all were alive, formed a joint Hindu family. One of the brothers, on his death without issue, left a widow named Alamelu, to whom' the other brothers assigned certain lands to be enjoyed for her maintenance. Alamelu has since died, and the plaintiff has brought this suit for a third share of the said immoveable properties. All the four brothers being now dead, one branch is extinct, two branches are represented by sons who are 1st and 2nd defendants, and the 4th branch is represented by the plaintiff. The plaintiff obtained a decree in the District Munsif's Court, but on appeal the District Munsif's decision was reversed and her suit was dismissed with costs.
2. After the death of Alamelu's husband, the three remaining brothers are alleged to have become divided, and Exhibit A is evidence of a partition affecting the plaintiff's husband, the 2nd defendant and his father. It has not been made out whether the allotment made to Alamelu was prior to, simultaneous with or subsequent to that partition, and whether it constituted the grant of a widow's estate, a life-estate or a full estate, although prima facie being for her maintenance it was resumable at the death of the grantee (Mayne's Hindu Law, paragraph 395).
3. Plaintiff's husband, however, having admittedly predeceased Alamelu, the plaintiff; being a widow, can only succeed to the property which was actually vested in her husband at the time of his death. No fresh right can accrue to her as widow in consequence of the subsequent death of a person to whom he would have been heir if he had lived. Mayne, paragraph 529, and Balamma v. Pullayya 18 Ma. 163 : 5 M.L.T. 22,
4. It is contended that the plaintiff's husband had a vested interest in those properties which were left undivided at the partition as being incapable of division during, Alamelu's lifetime, and reliance is placed upon Exhibits A and I as showing that there was a complete division among the brothers and that a divided status attached to the items allotted for Alamelu's maintenance, as it was declared in Exhibit A, the judgment in Original Suit No. 61 of 1898, that 2nd defendant's father was entitled to take a l/6th share in them when they fell in reversion at Alamelu's death.
5. Now the plaintiff could only succeed in this suit by establishing either that there was an agreement binding all the members of the family to give her a share in these items at Alamelu's death, or that her husband had a vested interest in them. In the Court of first instance the arrangement set up in the plaint was abandoned by plaintiff's Pleader and the District Munsif found it not proved. It is urged before us that the Pleader who represented the plaintiff at the trial was wrong in giving up this point; but it is clear that even if we were to permit the plaintiff to reopen the matter at this stage, there is no evidence on record to establish the truth of plaintiff's allegation, and this would certainly not be a case where we could allow fresh evidence to be admitted.
6. Neither is there anything on the record to show that any vested interest in favour of plaintiff's husband was created within the meaning of Section 19 of the Transfer of Property Act. Exhibit A contains merely a declaration, to which the 1st defendant and his father were not parties, of 2nd defendant's father's reversionary right in the suit items. The cases of Rewan Persai v. Mussammat Radha Beeby 4 M.I.A. 137 : 7 W.R. 35 : 1 Suth. P.C.J. 172 : 1 Sur. P.C.T. 327 : 18 E.R. 651 and of Appovier v. Rama Subba Aiyan 11 M.I.A. 75 : 8 W.R. (P.C.) 1 : 1 Sath. P.C.J. 657 : 2 Sar. P.C.J. 218 : 23 E.R. 30 cited at the hearing were cases in which there was a divided interest vested in the claimant, in the first case by a Will, and the latter by an agreement.
7. The second appeal fails and is dismissed with costs.
8. I concur.