# Ram Asrey & Ors v. Ram Jeet Dubey & Anr

- **Citation:** (2021) 3 ILRA 1120
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-30
- **Case number:** Second Appeal No. 138 of 1982
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-asrey-ors-v-ram-jeet-dubey-anr-46882
- **Pages:** 17

## Headnote

3 All. Ram Asrey & Ors. Vs. Ram Jeet Dubey & Anr.
1121
Umesh Chandra, Ishwar Dutt Shukla,
Pramod Kumar, Santosh Kumar Mehrotra

Suit for permanent injunction -ancesstral
property-Plaintiff
claimed
possessiondefendedon th ebasis of allged sale deed
executed by one Smt. Sughari, widow of
Nohar and her daughter -possession now
interfered-no effort in the pleading that
Nohar was Appeallant's relative and in
which degree or class-or how is he higher
in order of succession than the widow
/daughter-plea of adverse possession is
based
on
bald
statement-Appeal
dismissed. (E-7)

List of Cases cited:

1.Lakshmi Ammal Vs Thangavel Asari reported
in AIR 1953 Madras 977

2.Mst. Bhuri Bai Vs Mst. Champi Bai & anr.
reported in AIR 1968 Rajasthan 139

3.Velamuri Venkata Sivaprasad (Dead) By Lrs.
Vs Kothuri Venkateswarlu (Dead) by Lrs. & ors.
reported in 2000 (2) SCC 139

## Text

_Characters 0–39,938 of 56,294. This is a partial read: ask again with offset=39938 for what follows._

1120 INDIAN LAW REPORTS ALLAHABAD SERIES
to decide whether to go on with the Scheme
or not, it was his left to his subjective
satisfaction. The action of holding the
enquiry and then taking of the decision by
the Minister concerned, which was being
considered by the House of Lords did not
contemplate a judicial act as the Rules of
natural justice were not applied to the
Minister's decision making for the simple
reason "that the initiative was wholly his,
and on him was placed the responsibility of
seeing that the intention of the Parliament
is carried out." (emphasis supplied)

94. The Supreme Court referred to
several commentaries on Administrative
Law where the judgement rendered in
Franklin case was referred to and analyzed
and it was held that the Court looked at the
Act as a whole, applying a theory of
interpretation similar to the Rule in
Haydens case. It was held that the
Franklin's
case
is
based
upon
the
interpretation of the provisions of that Act
and particularly on the ground that the
object of the enquiry is "to further inform
the mind of the Minister and not to
consider any issue between the Minister
and the objectors." (emphasis supplied)

95. The language of Section 7 of the
Act and the procedure applicable to the
Authority while taking decision under
Section 7 does not require the Authority to
act judicially. The Act only requires that
where the Authority is satisfied that
condition for the exercise of its power of
revocation of registration of the Promoter
or real estate agent exist viz. it is
established that the Promoter/ Real Estate
Agent is adopting corrupt practices then the
Authority may pass an order revoking the
registration
and
the
consequences
mentioned under the Section would follow.
The Authority may issue show-cause notice
and consider any reply submitted to it
within thirty days of issuance of notice.
The Authority therefore is only required to
issue notice to "further inform its mind"
with regard to action proposed to be taken
by it, in this case Suo Moto. The power
under Section 7 is an Administrative
Power. Therefore, the power given under
Section 81 of the Act to sub delegate the
actual drafting of the order giving detailed
reasons for invoking its power under
Section 7 of the Act against the promoter,
the appellant herein, was rightly exercised
by the Authority.

96. This Court finds no illegality, or
infirmity
either
in
the
order
dated
30.09.2019
or
in
the
order
dated
20.10.2020 passed by the Tribunal in this
Appeal.

97. The Appeal is dismissed. The
Appellant shall comply with the order of
the Authority and of the Tribunal within
thirty days from today.
----------
(2021)03ILR A1120
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.03.2021

BEFORE

THE HON'BLE JASPREET SINGH, J.

Second Appeal No. 138 of 1982

Ram Asrey & Ors. ...Appellants
Versus
Ram Jeet Dubey & Anr. ...Respondents

Counsel for the Appellants:
H.S. Sahai, Mohd. Aslam Khan, Mohd.
Shadab Khan, Preeti Saxena, Raj Kumar
Maurya, Ved Prakash Verma

Counsel for the Respondents:
3 All. Ram Asrey & Ors. Vs. Ram Jeet Dubey & Anr.
1121
Umesh Chandra, Ishwar Dutt Shukla,
Pramod Kumar, Santosh Kumar Mehrotra

Suit for permanent injunction -ancesstral
property-Plaintiff
claimed
possessiondefendedon th ebasis of allged sale deed
executed by one Smt. Sughari, widow of
Nohar and her daughter -possession now
interfered-no effort in the pleading that
Nohar was Appeallant's relative and in
which degree or class-or how is he higher
in order of succession than the widow
/daughter-plea of adverse possession is
based
on
bald
statement-Appeal
dismissed. (E-7)

List of Cases cited:

1.Lakshmi Ammal Vs Thangavel Asari reported
in AIR 1953 Madras 977

2.Mst. Bhuri Bai Vs Mst. Champi Bai & anr.
reported in AIR 1968 Rajasthan 139

3.Velamuri Venkata Sivaprasad (Dead) By Lrs.
Vs Kothuri Venkateswarlu (Dead) by Lrs. & ors.
reported in 2000 (2) SCC 139

4. Sona Dei Vs Mst. Tulsa (Dead) through Lrs.
AIR Online 2019 CHH 1261

5.Savitri
&
ors.
Vs
Surendra
Mohan
Mohana,1987 Volume 5 LCD 137

6. Anathulla Sudhakar Vs P. Buchi Reddy 2008
(4) SCC 594

7. Deena Nath Verma Vs Gokaran reported in
2003 (94) RD 323

8. State of Bihar Vs Radha Krishnan Singh & ors.
reported in 1983 (3) SCC 118

9. State of Bihar & ors. Vs Radha Krisha Singh &
ors.,1983 (3) SCC 118

10. Smt. Dharma Devi & ors. Vs Narayan
Prasad Jaiswal reported in 1988, (6) LCD
459

11. Javitri Vs Gendan Singh & ors. ,AIR 1927
Alld. 727
12. Gurdwara Sahib Vs Gram Panchayat, Village
Sirthala & anr. reported in 2014 (1) SCC 669

13.Abdul Salam Vs Imrana Siddiqui reported in
2019 SCC Online Alld 3924

14. St. of Har. Vs Mukesh Kumar & ors. reported
in 2011 (10) SCC 404

15.Hemaji
Waghaji
Jat
Vs
Bhikhabhai
Khengarbhai Harijan reported in 2009 (16) SCC
577

16. M.S. Jagadambal Vs Southern Indian
Education Trust & ors. reported in 1988 Suppl.
SCC 144

(Delivered by Hon'ble Jaspreet Singh, J.)

1. This is the plaintiff's second appeal
against the concurrent judgments and
decree passed by Munsif, Akbarpur,
District Faizabad in a Regular Suit No. 191
of 1976 whereby the suit of the plaintiff
was dismissed which was carried forward
before the Lower Appellate Court in Civil
Appeal No. 288 of 1979 which was also
dismissed by means of judgment and
decree dated 16.01.1982 passed by the
District Judge, Faizabad.

2. Being aggrieved against the
aforeasaid judgment and decree, the instant
second appeal was preferred which was
admited by this Court by means of order
dated
26.03.2014
on
the
following
substantial questions of law as which are
being reproduced hereinafter for ready
reference:

(I) Whether the courts below after
recording a finding that Smt. Subra
remarried with Jhunnu which finding had
also become final as a result of the orders
passed under the consolidation operations,
the courts below in not considering the fact
that no custom having been established or
1122 INDIAN LAW REPORTS ALLAHABAD SERIES
proved by the defendant-respondents to the
effect that notwithstanding the marriage the
widow will continue rights over the
property of her former husband, could hold
the sale deed valid ?

(II) Whether the courts below in
not considering the possessory title of the
plaintiff and Dwarika, the predecessor-ininterest of the plaintiffs-appellants the
findings recorded as such stand vitiated ?

(III) Whether the plea of adverse
possession specifically having been taken a
specific issue having been framed to that
effect, the courts below in not considering
the valuable plea and valuable rights
accrued to the plaintiffs on account of
adverse possession had any right and in the
alternative the findings stand vitiated ?

(IV) Whether the specific plea
and evidence having been led to the effect
that immediately after the death of Nohar,
Smt. Subra remarried and migranted to
other village and started living with her
subsequent husband and also no evidence
of
possession
having
been
led
or
established with respect to Smt. Lalli, the
Courts below in not accepting the position
of the plaintiffs and Dwarika, predecessorin-interest of the plaintiffs, the findings
stand vitiated?

(V) Whether no issue having been
framed to the effect that there was any
family custom whereby the remarried
widow will continue her rights over the
property of her husband and non-framing
of issues causing serious prejudice to the
plaintiff's case, the findings recorded by the
Courts below stand vitiated?

(VI) Whether the plaintiffs having
been established their possessory title over
the property in dispute and at any rate the
plaintiffs having matured their rights on the
basis of possession. The Courts below in
not decreeing the suit of the plaintiffs and
in not considering their rights on the basis
of their posessory title could dismissed
plaintiff's suit?

(VII) Whether the Courts below
in not considering the fact that the house
being ancestral and Dwarika father of the
appellant no. 1 having been found to be
nephew of Nohar at any rate the plaintiffs
will not get right over the property in
dispute at least to the extent of half share?

Factual Matrix:-

3. Before adumerating the substantial
questions of law, brief facts giving rise to
the instant second appeal are being noted
first:

4. One Sri Dwarika instituted a suit
for permanent injunction against Ramjeet,
Abdul Kalam and Ram Sunag Singh which
was registered as R.S. No. 191 of 1976. It
was pleaded that the property in question
was ancestral of which the plaintiff was in
possession. It was further pleaded that the
defendants on the basis of an alleged sale
deed having got exected from one Smt.
Sughari widow of Nohar and Smt. Lalli
(alleged daugther of Sri Jhinnu and
Sughari) were attempting to interfere in the
peaceful possession of the plaintiff.

5. It was specifically pleaded that the
property in question initially belonged to
one Sri Nohar who was the cousin uncle
(chachere chacha as pleaded in para 3 of
the plaint). Upon death of Sri Nohar (about
28 years ago from the date of institution of
the suit) he was survived by his two year
old son and his widow Smt. Sughari. When
the son was 5 years old, he also expired.
Thereafter Smt. Sughari re-married as per
custom (Ghar Baithwa Riti) and since then
had been living and residing with Sri
Jhinnu. It was also pleaded that Smt. Lalli
was the daughter of Sri Jhinnu with his first
3 All. Ram Asrey & Ors. Vs. Ram Jeet Dubey & Anr.
1123
wife and that Smt. Lalli was not the
daughter of Sri Nohar. It was apprehended
that the defendant who had got a sale deed
executed from Smt. Sughari and Smt. Lalli
had made an attempt to occupy the said
property, hence the suit for permanent
injunction.

6. It was also pleaded that no rights in
the property in question accrued to either
Smt. Sughari or Smt. Lalli and that the
plaintiff is entitled to injunction restraining
the defendants from interfering in the
peaceful possession of the property in
question. Subsequently by way of an
amendment it was pleaded that after the
death of Sri Nohar, the plaintiff has been in
possession of the property in question and
with the passage of time, the plaintiff had
also perfected his rights by adverse
possession.

7. The defendant no. 1 Sri Ramjeet
filed a separate written statement whereas
defendant nos. 2 and 3 jointly filed a
separate written statement.

8. Primarily the defence as pleaded in
the written statement was that the property
belonged to Sri Nohar and upon his death the
same devolved on his widow Smt. Sughari
and his daughter Smt. Lalli. Both joined and
sold the property to the defendants on the
01st of July, 1970 and the defendants were
put in possession. However, the plaintiff in
order to occupy the property forcibly created
a door on the western wall in order to give an
impression and show his possession. It was
specifically denied that the plaintiff had any
right. It was also denied by the defendants
that Smt. Sughari had remarried with Sri
Jhinnu. The defendant also filed an additional
written statement wherein they also raised a
plea that they had perfected their rights by
adverse possession.

9. On the basis of the pleadings, the
Trial Court framed 8 issues, however, the
issues germane to the controversy are issue
nos, 2, 4, 5, 6 and 8 which read as under:-.

10. Issue No. (2) Whether the plaintiff
is the owner of the property in dispute; (4)
whether the pedigree shown in para 9-A of
the written statement of the defendant no. 1 is
correct (5) whether Smt. Sughari re-married
to Sri Jhinnu as alleged in paragraph 2 and 3
of the plaint; (6) Whether Smt. Lalli is not the
daughter of Nohar as alleged in para 3 of the
plaint and (8) whether the defendant had
become the owner of the proeperty by
adverse possession.

11. The parties led their respective
evidence and the Trial Court considering
issues nos. 2, 5 and 6 together held that the
property in question did belong to Sri
Nohar. On the issue regarding re-marriage
of Smt. Sughari it held that the plaintiffs
were unable to prove that Smt. Sughari had
re-married with Sri Jhinu as per Ghar
Baithwa Custom. However, it relied upon a
document filed before the Consolidation
Authorities i.e. a decision dated 23.06.1972
wherein it was indicated that Smt. Sughari
had re-married and was shown as wife of
Sri Jhinnu and on the aforesaid basis it held
that Smt. Sughari had re-married with Sri
Jhinnu but since the plaintiff did not plead
or lead any evidence regarding the custom
that upon re-marriage the widow i.e. Smt.
Sughari would lose her right in the property
inherited from her husband, therefore, it
held that she continued to have rights in the
property inherited by her husband and even
though she re-married, the same would not
affect her right or title over the property.

12. The Trial Court also relied upon
an extract of register relating to births
wherein
there
was
an
entry
dated
1124 INDIAN LAW REPORTS ALLAHABAD SERIES
18.01.1940 indicating that a daughter was
born to Sri Nohar. The Trial Court relied
upon the evidence of Sri Bukkal, husband
of Smt. Lalli and concluded that Smt. Lalli
was the daughter of Sri Nohar. It also
recorded a finding that since the name of
Smt. Sughari after the death of Sri Nohar
continued to be recorded in the revenue
record and even as per the plaintiff-witness
no. 2 who stated that after the death of Sri
Nohar, Smt. Sughari continued to reside in
the premise, hence, it concluded that Smt.
Sughari continued to be in possession and
that the plaintiff had failed to prove that he
had perfected his rights by adverse
possession. In the aforesaid manner, the
issues nos. 2, 5 and 6 were decided in the
negative against the plaintiff/appellant.

13. The Trial Court while dealing
with issue no. 4 held that the defendant
failed to establish the geneology. It also
decided issue no. 8 regarding the adverse
possession which was framed on the
pleadings of the defendant against the
defendants and by means of the judgment
and decree dated 17.05.1979 dismissed the
suit.

14. The First Appellate Court upon
hearing Civil Appeal No. 288 of 1979
concured with the findings recorded by the
Trial Court. It also considered another
aspect and expressed its opinion that since
it was proved that Smt. Lalli was the
daughter of Sri Nohar then even assuming
if Smt. Sughari (widow of Nohar) remarried with Sri Jhinnu and may have lost
the right in the property even then Smt.
Lalli being the daughter was competent to
convey the title and for the said reason the
suit of the plaintiff could not succeed and
with the aforesaid reasoning affirmed the
findings of the Trial Court and dismissed
the appeal.

15. From the perusal of the substantial
questions of law upon which the instant
second appeal has been admitted as noted
above, it would indicate that questions of
law at serial nos. (I) and (V) relate to the
question of re-marriage of Smt. Sughari
and her loosing right in the property upon
re-marriage. The questions of law framed at
serial no. (II) and (IV) relate to possessory
title of the plaintiff in context with that of
Smt. Lalli and similarly the question of law
at serial no. 3 relates to adverse possession
so also the question framed at serial no.
(VI), whereas question of law at serial no.
(VII) is in respect of the right of the
plaintiff in the property in question.

Submissions of the learned counsel
for the parties:-

16. Sri Mohd. Arif Khan, learned
Senior Counsel assisted by Sri Mohd.
Aslam Khan and Deepankar Kumar,
learned counsel for the plaintiff/appellant
while pressing the aforesaid second appeal
on the questions of law as mentioned above
has primarily urged that (i) the plaintiff by
amending the plaint had specifically raised
an issue of adverse possession. It was
specifically pleaded in paragraph 4-A and
its contents were denied by the defendant
but no issue was framed. It is further urged
that since the issue was not framed, the
plaintiff was prevented from leading any
evidence and the Trial Court while
considering issues nos. 2, 5 and 9 has also
recorded a finding that the plaintiff could
not
establish
his
right
of
adverse
possession. It is urged that the Trial Court
had committed a grave error in returning
such a finding when there was no issue or
evidence in respect thereto.

(ii) It is also urged that the Trial
Court further committed an error in
3 All. Ram Asrey & Ors. Vs. Ram Jeet Dubey & Anr.
1125
deciding the issue of adverse possession in
context of the defendants while deciding
issue no. 8 whereas apparently the sale
deed
of
the
defendants
was
dated
04.07.1970 and prior thereto the defendants
did not claim possession, moreover, ths suit
itself was preferred in the year 1970. For
the said reason, the plea of adverse
possession raised by the defendants was
apparently bad yet the same has been
decided but though the plaintiffs who had
substantively raised the aforesaid plea by
pleading that after the death of Sri Nohar in
the year 1942, the plaintiffs came in
possession and had perfected their right by
adverse possession and this aspect of the
matter not having been decided nor the
issue having been framed has causes
substantial injustice and for this reason
alone the second appeal deserves to be
allowed.

(iii) It is further submitted by the
learned Senior Counsel for the appellant that
both the Courts have failed to notice that the
property in question belonged to Sri Nohar. It
has been recorded by the two courts that Sri
Nohar died in the year 1942. Upon his death,
the property would be inherited by his widow
Smt. Sughari, however, upon her re-marriage
with Sri Jhinnu, she would loose her right and
thus the property would devolve on the
reversioners and since Nohar was the
"Cousin Uncle" of the plaintiff, hence, the
property devolved on him and he being in its
possession was entitled to protect the same
against all strangers including the defendants.

(iv) It is further submitted that once
it was held by the Trial Court that Smt.
Sughari had remarried with Sri Jhinu, the
necessary consequence would be that she
would lose her right in the property inherited
from her earlier husband, the moment she remarried. There was no material available on
record to establish that Smt. Lalli was the
daughter of Nohar and that being so, the
property would then devolve upon the
reversioners i.e. the plaintiff and this aspect
of the matter has not been considered
resulting in sheer miscarriage of justice.

(v) It is also urged that the Trial
Court has committed an error in relying upon
the notion that where a custom is pleaded
regarding a type of marriage, then it was also
necessary to plead and prove that upon remarriage the lady would lose her right in the
property of her first husband. It is submitted
that the finding of the Trial Court in this
regard is inconsistent, inasmuchas, it agreed
that Smt. Sughari had remarried but failed to
take note of the fact that upon her remarriage, she would lose the right in the
property inherited from her earlier husband
Sri Nohar which was by operation of law and
not mere custom. It is also urged that there
was no effort made by the defendant to prove
the geneology and moreover issue no. 4 has
been decided against the defendant which
indicated that they could not establish the
geneology, hence the defendant could not get
the benefit and for the said reason, the suit of
the plaintiff could not have been dismissed
especially when the possession was admitted
by the defendant, as in the pleadings of the
defendants, it was stated that the plaintiff had
forcibly opened a door on the western wall
demarcating the property to show his
possession.

(VI) Lastely, It was also urged
that both the Courts also committed an
error in treating Smt. Lalli as the daughter
of Sri Nohar and affirmed the finding of the
Trial Court. Thus, the second appeal
deserves to be allowed.

17. In support of his submissions has
relied upon the provisions of the Hindu
Widows Remarriage Act, 1856 as well as
the provisions of Hindu Womens Right to
Property Act 1937. He has also relied upon
the case of Lakshmi Ammal Vs. Thangavel
1126 INDIAN LAW REPORTS ALLAHABAD SERIES
Asari reported in AIR 1953 Madras 977,
Mst. Bhuri Bai Vs. Mst. Champi Bai and
Another reported in AIR 1968 Rajasthan
139, Velamuri Venkata Sivaprasad (Dead)
By Lrs. Vs. Kothuri Venkateswarlu (Dead)
by Lrs. And Others reported in 2000 (2)
SCC 139, a decision of the Chhatisgarh
High Court in the case of Sona Dei Vs.
Mst. Tulsa (Dead) through Lrs. Reported
in AIR Online 2019 CHH 1261 and on the
case of Savitri And Others Vs. Surendra
Mohan Mohana reported in 1987 Volume
5 LCD 137.

18. Per contra, Sri I.D. Shukla, learned
counsel appearing for the respondentdefendant while refuting the submissions of
the appellant has submitted (i) that once the
defendant while delivering its defence had
clearly indicated that they were claiming the
property on the basis of a sale deed dated
04.07.1970 then it was not open for the
plaintiff to have maintained the suit for
simplicitor injunction and that it was
necessary for the plaintiff to have sought a
declaration of his title. In support of his
submissions, he relied upon the decision of
the Apex Court in the case of Anathulla
Sudhakar Vs. P. Buchi Reddy reported in
2008 (4) SCC 594. (ii) Sri Shukla also urged
that a person who pleads a custom must
prove the same. It is submitted that though
the plaintiff pleaded that Smt. Sughari had remarried by Ghar Baithwa Custom but he did
not prove the same, coupled with the fact that
not only the aforesaid custom of marriage
was required to be proved but it was also
incumbent on the plaintiff to prove that upon
re-marriage by Ghar Baithwa Custom, the
lady would lose her right in the property of
her earlier husband. In support of his
submission, he relies upon a decision of this
Court in the case of Deena Nath Verma Vs.
Gokaran reported in 2003 (94) RD 323
wherein it has been held that Ghar Baithwa
Custom is not a legal marriage unless Satpati
is performed. Relying upon it, it has been
urged that since the re-marriage of Sughari
was not legal, consequently, the Smt. Sughari
was not divested of her right in the property
inherited from her earlier husband especially
when there was no custom pleaded and
proved to the contrary.

(iii) It is also urged by Sri Shukla
that the plaintiff had urged that Sri Nohar was
his cousin uncle, then it was neceesary for the
plaintiff to have proved the necessary
geneology connecting the plaintiff to Sri
Nohar and unless and until every link thereof
is proved, it could not be said that the plaintiff
would have inherited the property from Sri
Nohar. In absence of any proper pleadings
and proof regarding the relationship of the
plaintiff with Nohar, the plaintiff at best
would be a stranger to the property who
would not have any right to file the said suit
and for the aforesaid reason, the suit as well
as the appeal were rightly dismissed by the
two courts below. He relies upon the decision
of the Apex Court in the case of State of
Bihar Vs. Radha Krishnan Singh & Others
reported in 1983 (3) SCC 118.

(iv) Sri Shukla further urged that
since the findings was returned by the Trial
Court relying upon an extract of the birth
register which indicate that a daughter was
born to Sri Nohar and even the husband of
Smt. Lalli had deposed before the Court
that Smt. Lalli was the daughter of Sri
Nohar and Smt. Sughari. This being a pure
finding of fact based on evidence cannot be
assailed, hence, even though for the sake of
argument, if the right of Smt. Sughari was
not perfected but since the sale deed was
executed by Smt. Lalli as well hence as far
as the title of the defendants is concerned, it
was complete and no interference is called
for by this Court.

(v) It has further been urged that
the plaintiff could not be permitted to raise
3 All. Ram Asrey & Ors. Vs. Ram Jeet Dubey & Anr.
1127
the plea of adverse possession as it was a
mutually destructive plea. The plaintiffs
had pleaded ownership on the basis of
inheritence and thereafter by amendment
raised the plea of adverse possession. Since
the plaintiff did not lay proper foundation
in the pleadings nor lead any evidence nor
made any attempt to get any issue framed
hence at this second appellate stage the
plaintiff cannot be permitted to plead foul.

(vi) Moreover, it is urged that the
plaintiff had to contest the suit on its own
strength and could not take the benefit of
any weakness of the defence. As the
plaintiff failed to establish the relationship
with Sri Nohar nor could prove his right
over the property nor his possession and
even though the plaintiff was in the
knowledge of the sale deed in favour of the
defendant
yet
the
same
was
never
challenged, hence for all the reasons the
appeal deserves to fail.

Evaluation of arguments advanced
and analysis of law:-

19. The Court has considered the rival
submissions and also perused the Lower
Court records.

20. The controversy between the
parties and involved in the instant second
appeal can succinctly be stated as under:-

(i) The plaintiff claims title to the
property of Sri Nohar being a reversioner
heir and as per their stand, upon death of
Sri Nohar his property devolved upon his
widow Smt. Sughri who lost the same upon
re-marriage with Sri Jhinu. Smt. Lalli was
not the daughter of Nohar hence the
plaintiff being reversioners would inherit
the property.

(ii) The defendant state that upon
death of Sri Nohar his estate was inherited
by his widow Smt. Sughri and his daughter
Smt. Lalli. Through Smt. Sughri did not remarry but even assuming she re-married
then at best the right of Smt. Sughri would
be lost but then it would vest with Smt.
Lalli who had executed the sale deed hence
title of the defendant is complete.

21. In view of the aforesaid
exposition and to adjudicate the instant
second appeal and to answer the questions
of law so framed, this Court is required to
note and ascertain on the given facts of the
case, the following:-

(a) As per the prevalent law, upon
the death of Sri Nohar who would succeed
to his estate.

(b) What would be the effect of
remarriage of Smt. Sughri with Sri Jhinu
and whether upon re-marriage Smt. Sughri
would loose her right in the property of her
earlier husband.

(c) If Smt. Sughri lost her right in
the property of her earlier husband upon remarriage then whether that right would vest
with the daughter or with the reversioners.

22. The material on record as well as
from the perusal of the statement, certain
facts which are borne out is, that the
plaintiff has claimed Nohar to be his cousin
uncle. Apart from a bare statement in the
pleadings, there is no geneology which has
been set up nor it has been explained or
indicated either in the plaint, additional
pleadings or even in the evidence as to how
the plaintiffs was related to Sri Nohar.

23. From the evidence it could be
deciphered
that
Sri
Nohar
expired
sometime in the year 1942. At that relevant
time, the Hindu Law (based on Shastras)
was applicable. The succession/inheritence
for the present purposes would have to be
1128 INDIAN LAW REPORTS ALLAHABAD SERIES
considered as per the prevailing law in the
year 1942.

24. As per Mulla on Hindu Law 21st
Edition in Section 38, 3 classes of heirs are
recognized by the Mitakshara namely (a)
Gotrajas Sapindas (b) Samanodakas (c)
Bandhus. It further provides that the first
class succeeds the second and the second
succeeds before the third.

25. Section 39 which is the first Class,
the Gotrajas Sapindas provides for the
sapinda relationship which extends to 7
degrees recknoned from and inclusive of
the deceased.

26. In the aforesaid class a certain
order has been devised which is reproduced
hereinafter for clarity:-

38. The classes of heirs:- (1)
There are three classes of heirs recognised
by Mitakshara, namely;

(a) gotraza sapindas;

(b) Samanodakas; and

(c) bandhus.

(2) The first class succeeds before
the second, the second succeds before the
third.

39. The gotraza sapindas of a
person, according to Mitakshara, are:

(i) His six male descendents in
the male line; i.e. his son, son's son, etc.
being S1 to S6 in Table IV. 1.

(ii) His six male ascendents in the
male line, the wives of the first three of
them, and probably also of the next three;
i.e. his father, father's father, father's
father's father, etc. being F1 to F6 in the
table and their wives, that is M1 to M6,
being the mother, father's mother, father's
father's mother, etc.

(iii) The six male descendents in
the collateral male line of each of his male
ascendents; i.e. x1 to x6 in the line of F1,
being his brother, brother's son, brother's
son's son, etc.

x1 to x6 in the line of F2, being
his paternal uncle, paternal uncle's son,
etc;

x1 to x6 in the line of F3, being
his parental grand-uncle, parental granduncle's son, etc;

x1 to x6 in the line of F4;

x1 to x6 in the line of F5; and

x1 to x6 in the line of F6.

(iv) His wife, daughter, and
daughter's son.

The sapindas as 57 in number as
shown below:-

S1 to S6

 6

F1 to F6 and their wives M1 to
M6

12

x1 to x6 in each of the six lines
from F1 to F6
36

wife, daughter and daughter's
son.
 3

========

57

27. From the perusal of the aforeaid,
it would indicate that apart from the 6 male
descendents, 6 male ascendents in the male
line, 6 male descendents in the collateral
male line it also includes the wife, daughter
and daughter's son. The order of succession
amongst the Sapinda has been noted in
Section 43.

28. At this stage, it will also be
relevant to notice that the provisions of
Hindu Women Right to Property Act, 1937
which was already in existence as the
aforeasid Act had come into effect from
14.04.1937.

29. Section 3 of the said Act relating
to devolution of property reads as under:-
3 All. Ram Asrey & Ors. Vs. Ram Jeet Dubey & Anr.
1129

"3. Devolution of property. -

(1) When a Hindu governed by
the Dayabhaga School of Hindu Law dies
intestate leaving any property, and when a
Hindu governed by any other school of
Hindu law or by customary law dies
intestate leaving separate property, his
widow, or if there is more than one widow,
all his widows together, shall, subject to
the provisions of sub-section (3), be
entitled in respect of property in respect of
which he dies intestate to the same share
as a son:]

Provided that the widow of a
predeceased son shall inherit in like
manner as a son if there is no son
surviving of such predeceased son, and
shall inherit in like manner as a son's son
if there is surviving a son or son's son of
such predeceased son:

Provided further that the same
provision shall apply mutatis mutandis to
the widow of a predeceased son of a
predeceased son.

(2) When a Hindu governed by
any school of Hindu law other than the
Dayabhaga school or by customary law
dies having at the time of his death an
interest in a Hindu joint family property,
his widow shall, subject to the provisions
of sub-section (3), have in the property the
same interest as he himself had.

(3) Any interest devolving on a
Hindu widow under the provisions of this
section shall be the limited interest known
as a Hindu woman's estate, provided
however that she shall have the same right
of claiming partition as a male owner.

(4) The provisions of this section
shall not apply to an estate which by a
customary or other rule of succession or
by the terms of the grant applicable
thereto descends to a single heir or to any
property to which the Indian Succession
Act, 1925, (XXXIX) of 1925) applies."

30. Thus, it would be seen that the
widow would also be entitled to the share
in the property of her deceased husband.

31. At this stage, it will also be
relevant to notice that with the advent of
the Hindu Widows Remarriage Act 1856,
the Act ameliorated the conditions of a
Hindu widow and provided that no
marriage contracted between Hindus shall
be invalid and no such marriage shall be
illegitimate by the reason of women having
previously married or betrothed to another
person who was dead at the time of such
marriage
or
any
custom
and
any
interpretation

32. Section 2 of the aforesaid Act of
1856 provided that any right or interest
which a widow gets in her husband's
property, by way of maintenance or
inheritence or by virtue of any testimentary
disposition and without express permission
to re-marry then only a limited interest in
such property with no power to alienate the
same would be available to such a widow
and upon her remarriage she shall cease to
have any right in the property of her
deceased husband and the next heirs of her
deceased husband or the persons entitled to
her property on her death shall thereon
succeeds to the same.

33. Section 2 of the Hindu Widows
Re-marriage Act, 1856 reads as under:-

"2.
"Rights
of
widow
in
deceased husband's property to cease on
her re-marriage- All rights and interests
which any widow may have in her deceased
husband's property by way of maintenance,
or by inheritence to her husband or to his
lineal successors, or by virtue of any will or
testamentary disposition conferring upon
her, with no power of alienating the same,
1130 INDIAN LAW REPORTS ALLAHABAD SERIES
shall upon her re-marriage cease and
determine as if she had then died; and the
next heirs of her deceased husband, or
other persons entitled to the property on
her death, shall thereupon succeed to the
same."

34. From the conjoint reading of the
aforesaid sections and the interplay of the
aforesaid Acts what transpires is, that
upon the death of Nohar in the year 1942,
his rights would devolve on his widow as
well as the daughter who being in the class
of Gotra Sapinda would inherit and have a
right in the property unless any heir higher
in order is present. It is also clear from the
provisions of the Hindu Womens Right to
Property Act 1937 as well as Section 2 of
Hindu Widows Remarriage Act, 1856 that
in so far as the widow is concerned upon
her re-marriage she would lose her right in
the property of her deceased husband. It
would also be relevant to notice that this
contingency/liability which the widow
incurs is recognised through a Statute and
is not based purely on custom.

35. It is only when that the persons
as enumerated in the preceeding class lose
their right to inherit the property that the
property then vests with the reversioners.
It would also be seen that a reversionary
heir although had contingent interest
which is recognised by the courts of law
as having a right to demand from the
estate to be kept free from danger during
its enjoyment by a widow or other limited
heir, however, the rights can only be
exercised once they are matured.

36. In the instant case, if the
aforesaid principles are applied, it would
be for the plaintiff to have clearly pleaded
his right of having succeeded to the
property as a reversionery heir as that he
was higher in order of succession to the
widow/daughter. In order to claim the
aforesaid, it was necessary for the plaintiff
to have specifically pleaded and explained
how he was related/connected with Nohar.
He also ought to have explained and
proved that upon the death of the Nohar,
who were the legal heirs and when the
plaintiff succeeded at that time there was
no nearer heir of the deceased than the
plaintiff.

37. The Apex Court in the Case of
State of Bihar and Others Vs. Radha
Krisha Singh and Others reported in 1983
(3) SCC 118 had the occasion to consider
the issue of succession, the geneology, its
importance and how the same is to be
proved. In paragraph 19, 24, 147 and 195,
the Apex Court has held as under:-

"19. The principles governing
such cases may be summarised thus:

"(1) Genealogies admitted or
proved to be old and relied on in previous
cases are doubtless relevant and in some
cases may even be conclusive of the facts
proved but there are several considerations
which must be kept in mind by the courts
before
accepting
or
relying
on
the
genealogies:

a. Source of the genealogy and its
dependability.

b. Admissibility of the genealogy
under the Evidence Act.

c. A proper use of the said
genealogies in decisions or judgments on
which reliance is placed.

d. Age of genealogies.

e.
Litigations
where
such
genealogies
have
been
accepted
or
rejected.

(2)
On
the
question
of
admissibility the following tests must be
adopted:
3 All. Ram Asrey & Ors. Vs. Ram Jeet Dubey & Anr.
1131

a. The genealogies of the families
concerned must fall within the four-corners
of Section 32(5) or Section 13 of the
Evidence Act.

b. They must not be hit by the
doctrine of post litem motam.

c. The genealogies or the claims
cannot be proved by recitals, depositions or
facts narrated in the judgment which have
been held by a long course of decisions to
be inadmissible.

d. Where genealogy is proved by
oral evidence, the said evidence must
clearly show special means of knowledge
disclosing the exact source, time and the
circumstances under which the knowledge
is acquired, and this must be clearly and
conclusively proved."

.......*......*......*

24. It is well settled that when a
case of a party is based on a genealogy
consisting of links, it is incumbent on the
party to prove every link thereof and even
if one link is found to be missing then in
the eye of law the genealogy cannot be
said to have been fully proved. In the
instant case, although the plaintiffs have
produced oral and documentary evidence
to show that Ramruch Singh and Debi
Singh were brothers being the sons of
Bansidhar Singh this position was not
accepted by the trial court as also by
M.M. Prasad, J., who dissented from the
other two Judges constituting the Special
Bench who had taken a contrary view and
had held that the plaintiffs had fully
proved the entire genealogy set-up in the
plaint. This, therefore, makes our task
easier because we need not discuss in
detail the evidence and documents to
show the connection of the plaintiffs up to
the stage of Gajraj Singh though we may
have to refer to the evidence for the
purpose of deciding the main issue viz.
whether or not Gajraj Singh was the son
of Ramruch Singh and Ramruch Singh a
brother of Debi Singh and son of
Bansidhar Singh."

.......*.......*..........*

146. We would now discuss the
evidence both oral and documentary in
the light of the principles laid down by
the aforesaid decisions. By way of
introduction, it may be noted that in the
present case the onus lies squarely on the
plaintiff Radha Krishna Singh to prove
his case by showing that he was the next
reversioner of the late Maharaja and that
every link in the genealogical tree which
he has set out in the plaint was proved.
Only after he has discharged his burden
by proving the aforesaid facts, could the
defendants be called upon to rebut their
case. On a careful scrutiny of the
evidence it seems that what the plaintiff
has done is to file any and every
document,
deposition,
statement,
declaration, etc., where there is any
genealogy which connects him with either
the Maharaja of Banaras or his gotias
without making any attempt to prove the
main link on which rests the entire fabric
of his case. The result has been that the
plaintiffs have landed themselves into a
labyrinth of delusion and darkness from
which it is difficult for them to come out
and the case made out by them has been
reduced to smithereens and smoulders
and despite all their snaring and snarling
they have miserably failed to prove the
pivotal point viz. the link between
Ramruch Singh, Gajraj Singh, Debi Singh
and Bansidhar Singh."

........*.......*......*

195.