MUSSUMAT PHOOLBAS KOONWUR Vs. LALLA JOGESHUR SAHOY

JUDGEMENT

(1.) THE suit out of which this appeal has arisen concerns a moiety of the undivided share of one Bhugwan Lall Sahoo in certain immoveable property situate in Zillah Sarun. Bhugwan Lall Sahoo, who died in 1860, was the member of a Hindu family which was descended from a common ancestor named Deepa Sahoo, and was governed by the law of the Mitakshara, the general law of the province in which it was domiciled. He died childless, but left two widows, Moheshee and Parbuttee. They therefore would have been his general heirs had he been wholly separate in estate; and were in any case entitled to such part of his succession as had been acquired or was held by him as separate estate. On the other hand, if the status of the family continued at the time of his death to be that of a joint and undivided Hindu family, his interest in the joint family property survived to his male coparceners. The only persons who answered that description were Sudaburt Pershad and the Plaintiff Hurreenath Pershad. They, in some of the proceedings, are called his nephews, but according to the pedigree set out in the Appellant's case, and apparently proved in the cause, they were his first cousins, the sons of two different uncles.

(2.) IT must now be taken to have been conclusively determined that Bhugwan at the time of his death, though entitled to certain subsequent acquisitions as separate estate, was, as to all the properties acquired by the family in the name of any of its members before the year 1846, joint in estate with Sudaburt and Hurreenath, and accordingly that his share in those properties became vested by survivorship in them. This question was first litigated in a suit brought by Sudaburt in 1861. The principal defendants to that suit were the widows. The judgment of the Zillah Judge, confirmed on appeal by the High Court, on the 10th of March, 1863, made the distinction above stated between the properties acquired before, and those acquired subsequently to 1846, affirming the title of the surviving male members of the joint family to the former. It unfortunately, however, happened that owing either to the frame of that suit, or to the manner in which the decree made in it was executed, the result of this earlier litigation was only to put Sudaburt into possession of one moiety of Bhugwan's share in the joint family property.

(3.) THE course of proceeding in the High Court with respect to these appeals was as follows: The Division Bench before which they came, conceiving that they involved points of law on which the authorities were conflicting, referred the following questions to the consideration of the Full Bench: