JUDGMENT
Henry Richards, Kt. C.J. and Tudball, J.
1. This appeal arises out of a suit for possession of immovable property. In the present appeal we are only concerned with a five biswa share in mauza Khiwali Abdullahganj. The claim is made by reversioners, who claimed that the shares in this village formed portion of the estate of Than Chand. Than Chand died very many years ago, leaving him surviving two widows, Musammat Dhan Kunwar and Musammat Lachman Kunwar. Musammat Lachman Kunwar survived Musammat Dhan Kunwar. Musammat Lachman Kunwar died on the 18th of March, 1905, and the present suit was instituted on the 6th of August, 1908.
2. The title to the property now in dispute is shortly as follows: It originally belonged to a man called Dulli; and here we may mention that it is not contended that Than Chand ever owned this property or indeed any share in this village. One Sheikh Muhammad Sharf-ud-din had a decree against Dulli, and the property was put up for sale in execution of this decree. It was purchased by one Baldeo, otherwise Badlu, a Brahman. He was not the actual purchaser, but he acquired the rights of the purchaser through pre-emption. Baldeo, otherwise Badlu, having thus become possessed of the property, sold it to Musammat Lachman Kunwar in the year 1874, many years after her husband’s death. Musammat Lachman Kunwar mortgaged the property; the exact date is not shown. She then on the 27th of November, 1888, made a deed of gift in favour of Chhidammi Lal, her brother, who entered into possession. After the death of Chhidammi Lal, his sons, Sham Lal, Hoti Ram and others, sold three biswas out of the five biswas to the appellant. A suit was then brought upon foot of the mortgage which Musammat Lachman Kunwar had made, but the appellant redeemed the mortgage before allowing the property to be put up to sale. He then brought a suit claiming to have the remaining portion of the property sold, basing his claim on the fact that he had redeemed the property and paid the whole of the mortgage debt. The remaining portion of the property was sold and purchased by the appellant. The title of the appellant to the property is thus abundantly clear, unless it can be shown that the purchase by Musammat Lachman Kunwar in 1874 was a purchase made for the benefit; of her husband’s estate, and that she intended that the property should form portion of his estate. Some evidence was given on behalf of the appellant to show that the purchase money which Musammat Lachman Kunwar gave for the property was actually lent to her by Chhidammi. No evidence was given by the other side to show where the money came from. The learned Subordinate Judge disbelieved the evidence that Chhidammi Lal had advanced the purchase money, and he says at page 17 of the judgment: “Musammat Lachman was then in possession of her husband’s property and therefore the presumption is that she acquired this property with the income arising out of her husband’s estate. It is laid down in Siromoni’s Hindu Law, page 372, 2nd edition: Where a widow is in possession of her husband’s estate the burden of proving any property to be her own separate property rests on the party calling it as such.’ According to that principle it was for the defendants to prove that the share in question was Lachman’s separate property and her stridhan, but I think that he hag failed to do so. I do not believe Dulli and Bhupal’s statements that Lachhman took the money for this purchase from Chhidammi. I find that Lachman purchased this property out of the income of her husband’s property and that she had only a life interest in it and that she had no right whatever to alienate it. The alienations made by her and her transferee’s heirs are not binding on the plaintiffs.” Even if we assume that the property was purchased out of the savings of the income of Than Chand’s estate, the widow was entitled to deal with those savings as she thought fit. Now if it could be shown that at the time of the purchase it was her intention that the property should become an accretion to her husband’s estate, she might not afterwards perhaps have been able to take it away from the husband’s estate and change the devolution of the title thereto. In the present case, however, we find that not very long after the acquisition of the property she mortgaged it, thus dealing with it as her own property. We have already mentioned that her husband had never owned the property or any shares in this village. Subsequently, in the year 1888, she made a deed of gift. We do not think, under these circumstances, that we ought to hold that it was the intention of Musammat Lachman Kunwar to buy this property as an accretion to her husband’s estate. It seems to us that the matter is well put in Mr. Trevelyan’s work on Hindu Law at page 458: “Should she invest the income in such a way as to indicate her intention that it was not to form part of her husband’s estate, but to remain at her disposal, whether such investment be of a temporary or permanent nature, she can deal with it, at any rate, during her life-time. Should she not dispose of property during her life-time, it does not pass to her heir, but is treated as a portion of her husband’s estate.” Under these circumstances, we think that the appeal ought to be allowed.
3. We accordingly allow the appeal, set aside the decree of the court below and, as against the present appellant, dismiss the plaintiff’s claim with costs in all courts.
