1. The point raised in this second appeal is that the Subordinate Judge has misdirected himself as regards the points to be determined in the appeal. The plaintiff sues for partition of the family properties. The first defendant is his brother, and the second defendant is another brother, this 7th defendant is the father's sister of the plaintiff and defendants Nos. 1 and 2, the 8th defendant is her daughter. It is admitted that the 7th defendant's husband was possessed of some property which was inherited by her after his death. Some properties were acquired with the funds or with the income of the properties of defendants Nos. 7 and 8. The plaintiff claimed a share of all the properties on the ground that they were all family properties. The first defendant pleaded that the properties of defendants Nos. 7 and 8 were made over to him under some arrangements. The Subordinate Judge in discussing the evidence as regards that has fallen into a very grave error in thinking that the plaintiff and defendants Nos. 1 and 2 are-the reversioners of the 7th defendant's husband. I think the learned Judge; really overlooked the relationship in thinking that defendants Nos. 1 and 2 are reversioners of the 7th defendant's husband, who was only their paternal aunt's husband and related to them in no other way. This I think has evidently influenced the Judge a good deal in weighing the evidence in the case. In one portion of his judgment he distinctly says that items Nos. 4, 5, 19, 21 and 22 of the B. schedule properties originally belonged to defendants Nos. 7 and 8. There is no evidence that there was any gift of these properties to the first defendant. In another portion lot the judgment he says 'there need not be any writing for a surrender to the nearest reversioner by a Hindu widow.' 'I, therefore, hold that the plaint B schedule properties and Exhibits 16 to 19 are joint family properties.' It is not possible to uphold a judgment where a vital mistake has been made as regards a very simple proposition of law; for under no circumstances can a Hindu inherit to his paternal aunt's husband who is otherwise not a relation. Further the Judge has not kept before him the distinction between the properties which belonged to the defendants Nos. 7 and 8 and those which belonged to the plaintiff's father. Some properties were acquired on darkhast in the name of the defendants Nos. 7 and 8. The contention on behalf of the plaintiff is that they were got benami in the name of defendants Nos. 7 and 8. When a land is granted on darkhast it cannot be said that it is given to a man benami for some other individual. The onus would be heavily on the plaintiff to make out such a case, where are also other errors in the judgment.
2. It is unnecessary to go into them in detail. I think the judgment is very unsatisfactory and should not be allowed to stand and I must, therefore, reverse the judgment of the Subordinate Judge on the first issue.
3. The case was heard afterwards by some other Subordinate Judge and he felt bound by the decision of the previous Subordinate Judge on this point. Seeing that I have reversed the finding of this Subordinate Judge on the main issue, the judgment of the Second Subordinate Judge dated 5th October 1922 is reversed. The Subordinate Judge will restore the appeal to file and record finding on issue Nos. 1 and 3 and dispose of it according to law.
4. The finding on the second issue recorded by the District Munsif will stand.
5. The costs on this appeal will abide the result.
6. The appellants will have refund of the Court-fee.