AMARJIT UPADHIYA Vs. ALGU CHAUBE

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for recovery of possession. The plaintiff alleged that the property in dispute was the stridhan property of his maternal grandmother Mt. Mahadei alias Gomta and that on her death he became the sole heir to it. The defendant denied that the property was the stridhan property of Mt. Gomta and also denied that the plaintiff was competent to bring the claim. There was, however, no specific assertion in the written statement that the plaintiff had sisters who would succeed to the stridhan estate, if it were one, in preference to him. But at the trial the defendant was allowed to lead oral evidence to the effect that the plaintiff had two sisters who were alive. No protest was made on behalf of the plaintiff to the production of such evidence, and there was no cross-examination of the three witnesses who deposed to that effect on the point. The learned Subordinate Judge has decreed the claim without considering this part of the defendant's oral evidence.

(2.) In appeal the point was raised before us that the plaintiff in the presence of his sisters had no locus standi to sue. We accepted the findings of the Court below that the plaintiff was the daughter's son of Mt. Gomta and that the property in dispute was her stridhan property. We called upon the plaintiff to produce an affidavit in this Court stating whether or not he had any sister alive. No such affidavit was produced. We therefore felt that the matter should be further inquired into. We accordingly sent down three issues to the Court below for findings, and gave the parties liberty to adduce fresh evidence. The findings returned are that the plaintiff has got sisters alive and that there is no evidence to show that their rights have in any way passed on to the present plaintiff. There is also a finding that the plaintiff's mother Mt. Reshma Kuar had predeceased the plaintiff's grandmother Mt. Gomta.

(3.) Objections have been filed on behalf of the plaintiff to the finding that he has sisters. The defendant in addition to his own deposition produced two fresh witnesses apart from the three witnesses who had been examined before, all of whom stated that the plaintiff has two sisters, viz.: Mt. Surta and Mt. Sheokalia who are alive and are married. The plaintiff's reply supported by one witness was that these ladies were his first cousins. Neither party thought fit to produce either of the two ladies. The learned Subordinate Judge who heard the whole evidence has come to the conclusion that the plaintiff's denial was false and that the defendant's evidence is true. We see no reason to take a contrary view. We must therefore accept the finding that the plaintiff has got sisters alive. It is not disputed before us that the plaintiff's mother Mt. Reshma Kuar had predeceased her own mother. It follows that on the date when Mt. Gomta died she left property which had been her stridhan property. Chap. 2, Section 11, para. 15, and 18 of the Mitakshara make it quite clear that to a stridhan estate daughters daughters have preference over daughter's sons.