Patna High Court
Mohanlal vs Habibullah And Ors. on 26 June, 1963
Equivalent citations: AIR1963PAT430, AIR 1963 PATNA 430
JUDGMENT Ramratna Singh, J.
1. This appeal by defendant No. 1 arises out of a suit for .partition which, was decreed by an Additional Subordinate Judge of Patna. The properties sought to be partitioned are two holdings situated within Patna Municipal Corporation, namely, old holding No. 101 corresponding to new holding No. 103 consisting of two blocks described, as northern kita and southern kita, and old holding No. 96 corresponding to new holding No. 98.
2. In order to appreciate the case, it is necessary to refer to the admitted genealogical table given below :-
NARAIN NATHUNI SAO |
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kallar Sao Mahadeo Sao_Mosst. Bhagwatia Makhan Sao
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Sunder Kuer=Kistorilal |
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Gopi Nath=Mosst. Paspati Kuer Lal Babu |
(Defendant 14) (Defendant 12) |
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Jugeshwar (Defendant 13) |
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Saukhi Paduji Saduji= Gulabji Saudagar Muranji= Parmeshwarji
| | Sunder Kuer | | Mosst. Kuer |
------------ | | Prabhuji Bifo |
| | | Mohan Lal ---------------
1st wife 2nd wife | (Defendant 1) | |
| | | Chhathu= Raghunath
Radhe Sao= | | Mosst. Resham Kuer (Defendant 6)
Sampat Kuer | | (Defendant 7)
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--------------- |
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Lakshmi Ganesh Lal|
Narain (Defendant 5)|
(Defendant 2) =Deoki |
=Parvati Kuer Kuer |
(Defendant 4) (Defend-|
ant 5) |
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=Deorani Kuer (wife)
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| | | | |
Jamuna Narain Besar=Ramautar janki=Banwari Ramkuer=Hajari Sampatia=Baiju
(Defendant:10) | (defendant 11) | |
Rama Lakshman (Defendant 9)|
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Rajendra Lakhan
(Defendat 8)
Defendants 1 to 14 are the only persons alive in this family at the time of the institution of the suit. It will be noticed that the common ancestor, Narain Sao, had three sons, namely, Kallar Sao, Mahadeo Sao and Makhan Sao. Defendant No. 12 is the son of Sundar Kuer, the daughter of Mahadeo Sao. This defendant had a full brother named Gopi Nath who died leaving a son who is defendant No. 13 and a widow who is defendant No. 14. Makhan Sao who died before 1902 had seven sons. The eldest son Saukhi had two wives; defendant Nos. 2 and 3 arc the sons through the second wife and defendants Nos. 4 and 5 are, respectively, the wives of these sons. Radhe Sao, the son of Saukhi Sao through his first wife, died sometime before 1902 leaving behind his widow Mosst. Sampat who died in or about 1940. Paduji, the second son of Makhan Sao, died sometime before 1932 leaving behind his widow Deorani Kuer and five daughters. Deorani died in 1934-35 leaving behind the five daughters of whom Jamuna defendant No. 10 and Janki defendant No. 11 were alive at the time of the institution of the suit. Defendant No. 9 is the son of Ram Kuer, another daughter of Paduji; and defendant No. 8 is the son of another Sampatia, the youngest daughter of Paduji.
This daughter had another son named Rajendra Sao who died long ago. None in the branch of Besar Kuer, the second daughter of Paduji was alive at the time of the institution of the suit. Mohan Lal (defendant No. 1) is the son of Saduji the third son of Makhan Sao. His fourth son, namely, Gulabji, had a son named Prabhuji. Saudagarji, the fifth son of Makhan, died leaving a widow named Bifo who died in 1938. Miranji, the sixth son of Makhan Sao, died in 1902 leaving widow Mosst. Kuer who died in 1914. Parmeshwar Sao, the youngest son of Makhan Sao, died in June, 1929, leaving two sons Chhathu and Raghunath (defendant No. 6). Chhathu died in 1939-40 leaving a widow named Mosst. Resam Kuer (defendant No. 7). Kallar Sao, the eldest son of Narain Sao, died on the 24th September, 1902, without leaving any issue or widow and he was the exclusive owner of the suit properties, having separated from Mahadeo Sao and the other defendants of Makhan Sao long before. Kallar executed a registered will on the 21st July, 1902 in respect of the suit properties and other properties. Saduji and Parmeshwarji were the executors of the will, and they took out probate from the Court on the 13th June, 1903 in respect of this will.
3. The plaintiff was the tenant for some time past of the southern kita of holding No. 101and also about one half of holding No. 96. He purchased the shares of Mosst. Jamuna and Mosst. Besar, two daughters of Paduji in the two kitas of holding No. 101 under a registered sale deed dated the 18th September, 1941 and the share of the other, two daughters, namely. Ram Kuer and Mosst. Sampatia in these kitas from their heirs under a registered sale deed dated the 26th September, 1941. He also purchased the share of the heirs of Mahadeo Sao in both the kitas under another registered sale deed dated 7th January, 1950, and the entire share of Raghunath, son of Parmeshwarji, and Resam Kuer, widow of Chhathu, in the two kitas under a registered sale deed dated 13th October, 1940.
Mosst. Sampat alias Sampatia sold the share of Parbhuji, claiming to have been married to him in sagai form, to Mosst. Deoki Kuer, wife of Ganesh Lal under a registered deed dated 15th June, 1938. This Deoki sold 3 piece purchased share in the southern kita to the plaintiff under a registered sale deed dated the 14th April, 1942. All these transfers relate to holding No. 101. He also purchased 3 annas share in holding No. 96 from the heirs of Mahadeo Sao tinder a registered sale deed dated the 7th January, 1950. On the basis of these sale deeds, the plaintiff claims a share of 7 annas 2 2/5 plea in the northern kita and 7 annas 11 2/5 pies in the southern kita of holding No. 101. He accordingly sought for partition of these shares in the suit properties.
4. The said Deoki Kuer (defendant No. 5) sold the southern kita of holding No. 101 to one Bansi Lal and Mosst. Parbati (defendant No. 4), widow of Lakshmi Narain aforesaid, under a registered deed dated the 15th June, 1938. Subsequently, Bansi Lal sold his purchased share to Mosst. Parvati Kuer under a registered deed dated the 28th January, 1940. Thus Parvati had 7 pice share in holding No. 101. Under a sale deed dated the 10th December, 1937, defendant No. 5 sold 21/2 annas share in the northern kita of holding No. 101 to Parvati. Parvati gave these shares to another Mosst. Deoki Kuer (defendant No. 16), wife of Ram Bihari Lal (defendant No. 15) under a registered bond dated the 23rd June, 1941 and later on she gave the same property in rehan to Sheikh Mohammad Khalil (defendant No. 18) under a registered bond dated the 7th December, 1948. Jagu Lal (defendant No. 17) purchased some share in holding No. 96 from Ganesh under a deed dated the 17th September, 1942. Defendant No. 16 also purchased some shares from Ganesh and Lakshmi Naravan, sons of Saukhi, under sale deeds dated the 21rd June, 1941 and 22nd March, 1942. The father of defendant No. 19 purchased four and a half annas share in holding No. 96 from Raghunath and others and Lakhan and others respectively, under registered deeds dated the 6th April, 1939 and 19th June. 1940.
5. Then the case of the plaintiff, who was substantially supported by the defendants, other than' defendant No. 1 (except, of course, defendant No. 17 who did not appear), was that by the will Kallar Sao gave certain shares to the different legatees in the corpus of the suit properties and after the probate the legatees came into possession of their respective shares of the corpus. It was further said that Most. Sampat Kuer alias Sampatia, widow of Radhey Sao, married Parbhuji, son of Gulab, after the death of Radhey Sao and, therefore, after the death of Parbhuji, she became the owner of the share of Gulabji according to the will. After the death of the legatees, their respective heirs came into possession of their shares, until some of the shares were transferred by sale or rehan to others not connected with the family.
It was further alleged that, sometime after the death of Kallar Sao, Mst. Kuer made over her share in the property by oral gift to Saukhi, Lakshmi and Ganesh and left for her father's place in the district of Muzaffarpur and ultimately died there about 40 years before the institution of the suit. One and a half annas share set apart for charitable purpose by Kallar Sao and one anna share which had been allotted to Mst. Kuer, that is, two and a half annas share was taken possession of by Saukhi and his two sons, Lakshmi and Ganesh, and their names were accordingly recorded in respect of these shares in the Municipal Survey khasra which was published in 1932-33. After the death of Bifo in 1938, 2 pice out of 11/2 annas share in the estate of Saudagar devolved upon Lakshmi and Ganesh, 2 pice on Chhathu and Raghunath and the remaining 2 pice upon Mohan Lal. Mst. Sampatia, widow of Radhe and Parbhuji, is said to have sold her entire share, that is, 21/2 annas and the vendees are said to have come in possession of that share.
6. Most of the defendants appeared and filed written statements; but, except defdt. No. 1, all of them supported substantially the case of the plaintiff. Defendants 2 and 4, who are heirs of Saukhi Sao, and defendants 15 and 16, who are purchasers from some of the heirs of Saukhi Sao, have, however, denied the genuineness of the will and have asserted that, in the absence of Saukhi Sao and his sons who were living at the sasural of Saukhi Sao, Saudagarji and Parmeshwarji fraudulently managed to get the will executed by Kallar describing the properties as his khas properties; when Saukhi Sao and his sons came to know about this fraud after the probate had been granted, they raised objection and ultimately the members of the family entered into an agreement amongst themselves and a share was allotted by this agreement to Saukhi Sao and entered against his name in the municipal survey khasra of 1932-33, that is, 21/2 annas and since then they were in possession thereof in their own rights. In short, they supported the ownership and possession of the different co-sharers as mentioned in the municipal survey khasra of 1932-33. None of them, however, objected to the partition of the different shares as prayed for by the plaintiff. Defendant No. 1, who alone contested the claim of the plaintiff, asserted, that according to the terms of the will the legatees were to receive their respective shares only in the income derived from the two holdings by way of maintenance and, inasmuch as they were not owners of any share in the corpus of the holdings, the legatees or their heirs were not entitled to execute any deed of transfer in respect of any portion of the holdings and the transferees did not derive any title under those deeds. The only course open for them, according to this defendant, was to get an administration suit filed for administration of their shares in the two holdings.
He, therefore, disputed the claim of the plaintiff or any other transferee as also the shares alleged to belong to the different members of the family. This defendant denied the alleged marriage of Mst. Sampatia in any form with Parbhuji or the fact that she inherited the share of Gulabji or Parbhuji. It was further said that this Mst. Sampatia and Mst. Kuer were given one share each by the will in the income by way of maintenance only and, therefore, they had no right to transfer the same. Regarding the share for charity, it is alleged that the executors did spend the allotted share of the income for charitable purposes and it is asserted that it is necessary to get the estate of Kallar Sao administered so that the charity work may be carried on according to his will. The entry in the municipal survey khesra and municipal registers against the interest of this defendant is said to have been made fraudulently during his minority.
None of the daughters of Paduji and Deorani got any property left by Paduji, but his estate devolved half and half upon this defendant and the heirs of Parmeshwarji, with whom Paduji was joint, by the rule of survivorship. Parbhuji died a bachelor during the life-time of Gulab and, therefore, out of Gulab's share one-half devolved upon this defendant and the other half upon the heirs of Parmeshwarji. As surviving members of the family, this defendant and the heirs of Parmeshwarji entered in possession and occupation of Saudargarji's share half and half, on the death of Saudagar's widow. On the death of Mst. Kuer, her interest devolved upon this defendant and the heirs of Parmeshwar, half and half; and Saukhi and his sons had no connection with her share nor did she even go to Muzaffarpur but she died at Patna. The will was genuine and Saukhi was not given any share in the suit properties, as Kallar Sao had given his property lying at Mahesi in the district of Champaran to Saukhi who got his name recorded in respect thereof after the death of Kallar. Lastly, this defendant claims 7 annas 3 pice share in each of the two holdings, if a decree for partition is passed.
7. The learned Additional Subordinate Judge of Patna, who tried the suit, found
(i) that the corpus of the suit properties and not the income therefrom was given by the will to the beneficiaries;
(ii) the gift to charity was void for vagueness and uncertainty;
(iii) Saukhi and his sons got 21/2 annas interest in the property being the total of one anna interest given to Mst. Kuer, who died about 40 years ago, and 11/2 annas interest allotted under the will for the purpose of khairat (charity) and they were in possession of the same since before 1916, when Saukhi's name was recorded in the Municipal papers, until defendants 2 and 3 sold that interest to defendant Nos. 15 and 16;
(iv) defendant No. 1 had only 3 annas interest in the holdings in question;
(v) Saudagar's interest devolved after his death on his five nephews per capita, that is, 1/5th each;
(vi) Raghunath and Chhotu, accordingly, got 1/5th share out of the interest of Saudagar, that is 12 dams;
(vii) Raghunath and Resham, widow of Chhotu, executed a sale-deed (Ext. 1-d) in respect of 4/3/16 darns in holding No. 101 in favour of the plaintiff, but the latter can claim only 4/3/2 dams on account of the fact that his vendors were entitled to that interest only;
(viii) the plaintiff acquired 4/5th share which is equal to -/1/4 dams out of the interest of Paddy in both the holdings from his four daughters through two sale-deeds (Exts. 1/a and 1/b):
(ix) defendant No. 1, who claims to have been joint with Padoji, cannot claim any interest by survivorship in his share, because Paduji got this share under the will and thereafter his heirs were entitled to inherit that interest and transfer the same;'
(x) Paduji died in state of separation from defendant No. 1 and his father;
(xi) defendant No. 1 or his father did not inherit the shares of Gulab Paddu, Sampat and Kuer, nor he ever got possession of the same;
(xii) Mst. Sampat managed to be in possession of 21/2 annas share in the holdings made up of one anna interest which she got by the will and 11/2 annas interest of Gulab which she got as widow of Parbhu, son of Gulabji. She sold away the entire interest by 1938, that is, about two years before she died in 1940 and the transferees got possession of the shares purchased by them and were recorded with others in the municipal papers; and,
(xiii) the plaintiff got 15 dams interest in the southern portion of holding No. 101 from Deoki Kuer by a sale-deed (Ex. 1/c), who had purchased this interest from Mst. Sampat.
8. Accordingly, he found that the plaintiff was entitled to partition of his share to the ex tent of -/8/1 dams in the southern kita and
-/7/6 dams in the northern kita of holding No. 101 and -/3/- annas in holding No. 96.
9. Mr. Sarwar Ali, who appeared for the appellant, that is, defendant No. 1, attacked first of all the finding that the corpus, and not the income therefrom was given to the legatees by the will. It was laid down by the Supreme Court in Gnambal Ammal v. Raju Ayyar, AIR 1951 SC 103 that the cardinal maxim to be observed by Courts in construing a will is to endeavour to ascertain the intentions of the testator. This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised. In construing the language of the will, the Courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in particular sense, and many other things which are often summed up in somewhat picturesque figure.
"The Court is entitled to put itself into the testator's armchair".
But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by particular-testator in that document. So soon as the construction is settled, the duty of the Court is to carry out the intentions as expressed, and none other. The Court is in no case justified in adding to testamentary dispositions. In all cases, it must loyally carry out the will as properly construed, and this duty is universal, and is true alike of wills of every nationality and every religion or rank of life.
10. In the will (Ext. 10) dated the 21st July, 1902, the testator Kallar Sahu said that he was the exclusive owner of the properties in question, and he was making this will as he was ailing and was aged about 75 years. Then, he gives the names of all the next reversioners, that is, the descendants of the common ancestor to two of whom he gave some interest in the property. He appointed Saddu Ram and Parmeshwar Ram, the sons of his brother, Makhan Sao, as executors of the will and authorised them to obtain probate and manage the properties in consultation with the punches. In case of difference, however, between the punches and the executors, the latter's view was to prevail. The executors were authorised to spend Rs. 1500/- over his sradh. They were further directed to allow all the houses and godowns which had been let out on rent to remain on rent as before so far as possible; and out of the rent realised they were to repair them and meet the Chowkidari tax and then to distribute the surplus income among the legatees in the will month after month by way of maintenance.
If at any time the income decreased, the monthly amount of each legatee was to decrease according to proportionate share. The testator then gave certain properties absolutely to the executors. Kitas Nos. 5 and 6, that is, the two holdings in suit were in possession of tenants. Rs. 45/- was the monthly rental of kita No. 6 and Rs. 9/- of kita No. 5. The testator had also given on rent another kita which fetched Rs. 1/4/-. Out of the total rent of Rs. 55/4/- then payable, the testator desired that Rs. 11/4/-should be spent per month over chaukidari tax and repairs and the balance should be distributed among the different legatees, namely, three annas share to Mahadeo Sao, two and a half annas to Saduji, two and half annas to Parmeshwarji, one and a half annas to Saudagarji, one and a half annas to Paduji, one and a half annas to Gulabji, one anna to Mst. Kuer, widow of Miranji for life, one anna to Mst. Sampati Kuer widow of Radhe Sao for life and one and a half annas to charity.
11. Mr. Sarwar Ali submitted that, had the testator intended to give the shares in the corpus itself to the legatees, he would have said so clearly as he did in the case of the executors to whom he gave certain properties absolutely. But paragraph 4 of the will through which he gave certain properties absolutely to the executors shows that those properties were not in possession of any tenant, whereas kitas Nos. 5 and 6 were in possession of tenants and the testator desired in paragraph 3 of the will that the tenants should be allowed to continue; and that is probably why he distributed the income from rent among these legatees, though at the same time he also specified the shares of the legatees.
12. The learned Subordinate Judge relied on Section 172 of the Indian Succession Act which reads as follows:
"Where the interest br produce of a fund is bequeathed to any person, and the will affords no indication of an intention, that the enjoyment of the bequest should be of limited duration, the principal, as well as the interest, shall belong to the legatee."
Illustration (iii) to this section says:
"A bequeaths to B the rents of his lands at X. B is entitled to the lands."
This illustration supports the construction of the will made by the Subordinate Judge in respect of the suit properties. Mr. Sarwar AH submitted that distribution of rent as laid down in the will affords an indication of the testator's intention that the enjoyment of the bequest should be of a limited duration in view of the fact that rent was to be distributed among the legatees. But I have already stated that the shares of the legatees were also specified and the rent was distributed because the testator desired the tenants to continue. Further, if the intention were to make a bequest of the income only, such bequest would be for life only of the different legatees, but in fact the testator made it clear that only two of the legatees, namely, Mst. Sampat and Mst. Kuer would get their shares of the bequest for life. This fact also supports the Subordinate Judge's interpretation of the will. The earliest Municipal records which were prepared without any objection by any of the legatees or executors confirm the view that the testator intended to give absolutely the corpus of the properties to the legatees except, however, the bequest to the two ladies for life only. It must, therefore, be held that the corpus of the suit properties was given to the legatees, though the female legatees were to enjoy the same for their life only, and these female legatees were not entitled to be the absolute owners or to dispose of their shares of the properties.
13. Then, Mr. Sarwar Ali attacked the finding regarding shares. The case of defendant No. 1 is that, as his father Saduji died in a state of jointness with Padduji, he got the latter's interest by survivorship; and Deorani Kuer, the widow of Padduji, could not inherit that interest. But the interest of Padduji in the suit properties was not ancestral. He got it by virtue of the will from the exclusive properties of Kallar, and, therefore, the rule of survivorship would not apply. Evidence was adduced on behalf of the respondents that, after her death.
Padduji's daughters were in possession. The oral evidence is supported by the entries in the municipal registers, which are on the record. It appears from these registers that originally from 1906-07 to 1910-11, the executors, namely, Parmeshwar and Saddu were entered in the Demand Register of the Municipality; from 1916-17 to 1923-24 the names of Saukhi, Paduji, Saduji, Parmeshwar, Gulabji, Saudagar and Miranji sons of Makhan Sao were entered in the register; im 1938-39, the names entered were Lakshmi Narain and Ganesh sons of Saukhi, Chhathu & Raghunath sons of Parweshwarji, Mohanlal son of Saduji, Bifo widow of Saudagar, Parbati daughter of Saukhi, the sons and daughters of Deorani Kuer widow of Paduji; and in 1942-43, the names entered were Mohanlal son of Saduji, Bifo widow of Saudagar, Mst. Deorani, Mst. Parvati and plaintiff Sheikh Md. Habibullah. Hence, the claim of the appellant to the share of Padduji must fail.
14. The appellant also contested the finding that Saudagar's interest devolved after Bifo's death on his five nephews. It was contended by Mr. Sarwar Ali that Saudagar's interest would have gone to the executors, and therefore, at the time Bifo died it would go to the heirs of the executors only. But, in view of the finding that the corpus of the suit properties was bequeathed under the will to the different legatees, the interest that was given to Saudagar by the will became his exclusive property and, therefore, the ordinary law of succession, according to the Mitakshara, would apply after the death of Mst. Bifo. The learned Subordinate Judge has, therefore, rightly held that the interest of Saudagar devolved on his five nephews.
15. It was then contended that the bequest to charity was not void as held by the learned Subordinate Judge. As stated earlier, 11/2 annas share was given to charity for salvation of the testator (haroare waste khairat kiya jaye). Apparently, this is vague, inasmuch as the particular purpose to which the same would be applied is not mentioned. In Runchordas Vandravandas v. Parvatibai, ILR 23 Bom 725, the Privy Council said that the bequest by a Hindu testator of moveable and immoveable property to trustees for dharam was void, for the reason that the objects which can be considered to be meant by that word were too vague and uncertain for the administration of them to be under any control. In the will, the words used were "for making dharam dan (charitable or religious gifts, etc., and, "my money might always be used for some good dharam religious or charitable purpose) after my death (and) by which good might be done to me''; and "whatever income may be derivable from the said estates is to be expended for my dharam (religious or charitable purposes)". The principle underlying this decision was that, unless the subject and the objects can be ascertained, upon principles, familiar in other cases, it must be decided that the Court can neither reform maladministration nor direct a due administration. Applying the same principle, it must be held that in the instant case the bequest to charity was void and the view taken by the learned Subordinate Judge is, therefore, correct; and this interest, as I shall show later, was given to 'Saukhi by family arrangement.
16. Another argument of Mr. Sarwar Ali was that life interest was given by the will to Mst. Sampat, widow of Radhe Sao, and Mst. Kuer, widow of Miranji, also devolved on the executors, and, therefore, the heirs of the executors only would get the same. There is nothing in the contents of the will to support this contention. It is well settled that the property of the testator not included in the will would after his death go to his nearest heir. In this case, the testator did not say what would happen to the shares given to the two ladies after their death, and, therefore, the shares given to these ladies constituted the property left by the testator undisposed of, subject to the life interest of these ladies, abd, as admittedly Mahadeo Sao was the nearest heir of Kallar Sao at the time of the will, he would be entitled to the shares given to these two ladies by the will for their maintenance. But, as I shall show later, the share of Mst. Kuer was given to Saukhi by family arrangement. It may also be mentioned incidentally that Kalarl's heirs, namey, defendants 12 to 14, do not dispute the claim of Saukhi in respect of the share to charity and the share of Mst. Kuer on the basis of the family arrangement.
17. The interest which Mst. Sampat got by the will would, however, go to defendants 12 to 14 after, her death. It is true that she had transferred this interest before her death which took place in 1940; but as I shall presently show, the transferees did not acquire any title by adverse possession.
18. The next question raised was in respect of the interest of Gulabji, who left a son Prabhuji. According to the respondents, Mst. Sampat, widow of Radhe Sao, married Prabhuji in sagar form and, therefore, as a Hindu widow she inherited the interest of Gulabji which had devolved on Prabhuji. On the other hand, the appellant denies this fact and contends that, under the Mitakshara law of succession, one half of the interest of Gulabji devolved on him and the remaining half on Raghunath and Chhathu, sons of Parmeshwarji. The oral evidence in support of the allegation that Mst. Sampat married Prabhuji in sagai form is, by itself, not satisfactory on the point; but in the Patna City Municipal survey khasra (Ext. 6), which was prepared and finally published in December, 1933, about seven, years before her death which took place in 1940, Mst. Sampat is recorded as widow of Prabhu along with other co-sharers; and the share noted against her name is -/2/6 in the suit properties. There being no other explanation for her description as widow of Prabhuji so far back, it must be held that, after the death of her first husband she did marry Prabhuji and she survived Prabhuji as his widow.
19.. Now, the question is, who is entitled to the interest of Gulabji which devolved on Mst. Sampat through her second husband, Prabhuji. Gulabji and Prabhuji died before 1928-29. The interest would, therefore, devolve in equal shares on Sadujee, Parmeshwarjee and Saudagar, who were alive then, but they also died subsequently. Saudagar left a widow Mst. Bifo who died in 1938. Hence, out of Gulabji's interest, one-half would go to defendant No. 1 (son of Sadujee) and the remaining half to defendant 6 and 7 (descendants of Parmeshwarjee). But Mst. Sampat had sold the interest before 1940, when she died; and no suit was instituted by any of the reversioners to set aside the alienations. Hence, the claim of the reversiouers is barred by limitation under Article 141 of the Limitation Act; and defendant No. 1 or any other reversioners cannot get any share in Gulabji's interest in the present suit for partition.
20. The learned advocate for some of the contesting respondents submitted that the transferees of the interest of Mst. Kuer and Mst. Sampat under the will had acquired title by adverse possession. But no such case was pleaded nor any issue was raised to that effect. Moreover, it is a case of co-owners and there is no evidence of exclusive possession of, or hostile assertion of title by, any co-owner over any portion of the suit, properties. On the other hand, there are documents to show joint possession of the co-owners, e.g., deed of agreement for panchayat dated the 14th January, 1951 (Ext. 5) and notice (Ext. 2) dated the 2nd August, 1955 from Mohanlall (defendant No. 1) demanding rent of holding No. 96/98 from Makhan Lall, a tenant of a portion of holding No. 96/98. There is oral evidence also against exclusive possession. Defendant Lachmi Narayan (D.W. 5) says that Rasbehari (defendant No. 15) did not get possession of the portion that he sold to him and he was put in possession of another portions of the house which fetched a rent of Rs. 75/- per month; rent was not collected from tenants by all parties according to their shares but at random and the position was not settled. The plaintiff (P. W. 10) has said that before his purchase he took a portion of holding No. 96 on rent; the municipal tax for the entire holding used to be paid by him and adjusted towards the rent; there was constant dispute amongst the defendants, who were co-sharers, about the extent of their shares. It is also admitted that there are several tenants as well in the two holdings. In view of the evidence discussed above, the contention that any of the respondents had acquired any title by adverse possession must fail.
21. The last question is whether Saukhi's heirs are entitled to any share in the suit properties. The case of defendants 2 to 5, the descendants of Saukhi, is that the name of Saukhi was not included in the will of Kallar, because he used to live with his family at Maheshi in the district of Champaran; but when he came back with his family to the paternal place, a few years after the probate was granted, he raised an objection to the other members of the family and said that he would challenge the will and the probate in the Court. It is further said that Mst. Kuer who had got one anna interest by the will and who had also got 11/2 annas interest meant for charity gave both these interests to Saukhi and to his two sons, Lakshmi and Ganesh, orally. There is absolutely no reliable evidence to support the allegation that Mst. Kuer got interest of charity and thereafter gave 21/2 annas interest to Saukhi. Further, Mst. Kuer was not competent to give either her one anna share absolutely or the interest of charity to anybody. Hence, this part of the case must fail,
22. But the contesting respondents made out an alternative case that a family arrangement was arrived at to overcome the dispute raised by Saukhi and his two sons; and by that family arrangement they were given 2^ annas interest, namely, the interest of Mst. Kuer and the interest meant for charity. In support of the oral evidence adduced "to that effect, reliance was placed on the entries in the Municipal records commencing from 1916-17. In the demand registers from 1916-17 to 19-23-24, the name of Saukhi "along with those of Paduji, Saduji, Parmeshwarji, Gulabji, Saudagar and Miranji appeared. In the municipal survey khasra of 1932-33 the shares of the different persons of the family then alive are recorded thus:
Mst. Bhagwatia widow of Mahadeo Sao 3 annas Mohan Sao (defendant No. 1) son of Saduji 2 annas Chhathu and Raghunath sons of Parmeshwarji 2 annas Mst. Bifo widow of Saudagarji 1 annas Mst. Deorani Kuer widow of Paduji 1 annas Mst. Sampatia widow of Radhe and Parbhuji 2 annas and Lakshmi Narain and Ganesh Lal sons of Saukhi 2 annas In the demand register of 1938-39, names of Lakshmi Narayan and Ganesh, sons of Saukhi, appear against 21/2 annas interest. Names of Saukhi's heirs did not appear in the demand register of 1942-43, as they had transferred their interest by that time to others. In the absence of any other explanation regarding the entry of the names of Saukhi and his heirs from 1916-17 to 1938-39, it is quite probable that Saukhi got 21/2 annas interest in the suit properties by some family arrangement (to which all the co-sharers were parties) before 1916; and the case of the respondents to that effect must be accepted.
23. No other question was raised by any party before us. In view of the above findings, the finding of the learned Additional Subordinate Judge regarding shares of the plaintiff and defendant No. 1 (appellant) must be upheld; and each of them shall get a separate takhta for his share. As the evidence regarding shares of the other parties is not quite clear, they shall all get one joint takhta in the present suit. Subject to the above directions, the judgment and decree of the trial Court are affirmed and the appeal is dismissed. But, in the circumstances, the parties will bear their own costs of this Court.
Kanhaiya Singh, J.
24. I agree.