P (PLP)

THADANI, J.‑

This is an appeal from the decision of the learned 1st Class Subordinate Judge of Sukkur in which he dismissed the plaintiff--appellant's suit with costs. The suit was instituted by one Mst. Saran in forma Pauperis against her husband's brother for partition and separate possession of half‑share in certain properties mentioned in fists A, B, C and D annexed to the plaint and for mesne profits. In the alternative, the plaintiff sued for the arrears of maintenance and future maintenance. The defendant, Abdul Satar was a son of Haji Mooso who died in 1909 leaving two widows, two 'sons, Abdul Satar and Abdul Karim the husband of the plaintiff, and two daughters Abdul Karim died two years after his father Mooso. Abdul Satar died during the pendency of the suit and his legal representative have been brought on the record. It was the case of the appellant that .her husband died some eleven years before the institution of the suit in 1939, and that as she was the sole heir of her husband Abdul Karim she was entitled to Abdul Karim's share in the properties shown in the schedule annexed to the plaint and that in any case she was entitled to maintenance. The respondents case was that the appellant's husband Abdul Karim was disinherited by Haji Mooso in 1907.that thereafter Abdul Karim lived separately from his father on October 17, 1907, Raji Mooso made a will leaving his entire property to Abdul Safar it was denied that the house mentioned in list C was purchased from the cash and rents of the property left by Haji Mooso the deposit of ornaments was also denied. It was further alleged that Abdul Karim died on 20th October 1911 and that a false allegation was made that Abdul Karim died 11. years before the institution of the suit in order for bring the suit within the period of limitation. In regard to the alternative claim for maintenances the defence was that the appellant was not entitled to maintenance in law, nor. Was she entitled to maintenance at the rate claimed. On the pleadings a number of issues were raised. Issue No. 4 was, Is the "suit in time '?' Issue No. 6 was Did Haji Mooso make a will alleged in the written statement? If so, what is the consequence'? On the question of limitation, the learned Judge held the suit for partition to be time‑barred In regard to the claim for maintenance, he held that the suit for maintenance was competent but took the view that as no property was left by the appellant's husband she is not entitled to be maintained by the respondents. In the result the learned Judge dismissed the suit with costs. In dealing with the issue of limitation, the learned judge held that it, was satisfactorily established from the evidence of the appellant and from that' of her witnesses, Abdul Kadir and Jan Muhammad, that the appellant's husband Abdul Karim died some 25‑30 years before the institution of the suit. At the time of giving evidence the appellant was about sixty years old. She had stated in her evidence that she was married when she was 12 years old and that her husband died 12 or 13 years after her marriage. In other words, .the appellant was 25 years old when her husband died. The learned judge therefore came to the conclusion that the appellant's husband must have died some 35.years before the institution of the suit in 1939. The appellant had also stated in her evidence that‑ she had handed over the ornaments involved in the suit, to Abdul Satar after her husband's death some 30 years ago, and that her husband died at the age of 30 years two or three years after his father Haji Mooso's death in other words, the appellant's husband died in 1914 or 1915, that is to say, some 25 years before the institution of the suit. One of the witnesses Abdul Kadir examined by the appellant stated in his evidence That the appellant's husband died two or three years after Haji Mooso, Similarly, another witness Jan Muhammad stated that Haji Mooso died 20 years before he gave evidence, Jan Muhammad at the time of giving evidence was 45 years old. The respondents on the other hand produced the death certificate of the appellant husband, which showed that he died on 20th October 1911. On this evidence the learned judge was clearly right in coming to the conclusion that the appellant instituted the suit more than 25 years after the death of her husband. The respondent's case is that the appellant's husband was disinherited by his father Haji Mooso in 1907, and that from 1907 the appellant's husband was living separately from his father, who alone was in possession of the property in suit. On the death of Haji Mooso which occurred, according to the evidence 2 years before the appellant's husband died in 1911, Abdul Satar became the sole owner of the properties left by Haji Mooso. Abdul Satar's possession of the immovable property in suit after the death of Haji Mooso is admitted by the appellant herself in her evidence. She says, Abdul Satar used to collect rents and carry on' repairs to the property. On the evidence the learned Judge rightly came to the conclusion that Abdul Satar was in exclusive possession of the property in suit after the death of Haji Mooso. There is no doubt that the possession of Abdul Satar was adverse to Abdul Karim who had been disinherited by Haji Mooso in 1907, and that this adverse possession of Abdul Satar which commenced on the death of Haji Mooso in 1909 was never arrested and at the end of 12 years in 21 Abdul Karim's title if he had any was extinguished, The present suit was not brought until 1939.` At no time did Abdul Satar treat the appellant as a co‑sharer in the property left by Haji Mooso after his death. During the lifetime of Haji Mooso the appellant's husband had no share in the property. It is true that the parties to the suit are Kutchi Memons governed in matters of succession and inheritance by Hindu Law, but that branch of Hindu Law which makes a Hindu son at birth a co-parcener in the ancestral property is not applicable to Kutchi Memou ; of Manga Das v. Abdul Razak A I R (1) 1914 Bom.

17. The appellant's husband was therefore not a co‑sharer of Haji Mooso during the life‑time of Haji Mooso, assuming that any portion of the property in suit was inherited by Haji Mooso from his 'father. The appellant's husband was disinherited by Haji Maoso udder his will made 2 years before his death. The learned judge was right in coming to the conclusion that since the death of Haji Mooso in 1907, his son Abdul Satar was in exclusive possession of the property and Abdul Satar possession was, on the facts of this case, adverse to that of the appellant's husband. The suit brought by the appellant for partition having been instituted after the lapse of 12 years, it was clearly out of time by reason of Article 127 Limitation Act. The property alleged to have been left by the deceased Haji Mooso is mentioned by the appellant in Lists A and B and includes, same cash. As regards the immovable property mentioned in List A, there is no dispute and we have held that the appellant is not entitled to partition. In List B the property consisted of some furniture. The learned judge has taken the view that the appellant has failed to prove that Haji Moo so had left any furniture or cash. We see no reason to differ from him. Before dealing with the appellant's right to maintenance, it is necessary to revert to the will made by Haji Mooso in 1907. We agree with the learned judge that the will came from proper' custody and was more than 30 years old. A presumption therefore, arises under section 90, Evidence Act, that the document evidenc ing the will was a genuine document and was validly executed. Mr. Tikamdas for the appellant contends that the. will must nevertheless be proved to have been signed by the trestator. But on the authority of the decision of their Lordships of the Privy Council in Munna Lal v. Mst. Kashibai A I R (34) 1947 P C 15, the presumption must also extend to the due execution of the will. It was next contended by Mr. Tikamdas, that Haji Mooso being a Kutchi Memon could not dispose of his property by will The contention, however, has been negatived by the Bombay High Court and this Court when it was. Judicial Commissioner's Court in Advocate‑General v. Jimba Bai A I R (2) 1915 Bom. 1511 and Jalal Din v. Amin‑ud‑din 29 S L R

386. As we have already stated a Kutchi Memon governed by Hindu Law in matters of succession and inheritance is not governed by the law of survivorship or acquisition of interest in the ancestral property by birth, as in the case of Hindu Joint Family, joint in food, worship and estate. The question of maintenance under the Hindu Law of a widowed daughter‑in‑law is dealt with in para. 564 of Mulla's Hindu' Law, 10th Edn. The learned Judge has held that the appellant's husband left no property of his own and had no share in the property left by Haji Mooso, a finding with which we agree. Moreover, it is clear that the appellant became a widow after the death of her father‑in‑law Haji Moosa. Haji Mooso was under no moral obligation to maintain the appellant during the life‑time of her husband. There was, therefore; no moral liability attaching to the estate of Haji Mooso, which could be transmitted as a legal liability to the heirs and legal representatives of Haji Mooso upon their succession to the estate of Haji Mooso. Mr. Tikamdas for the appellant has argued the question of maintenance of a daughter‑in‑law whose husband has left no estate, by the heirs of her father‑in‑law on the supposition that it makes no difference in law, whether or not a daughter‑in‑law is widowed during the life‑time of her father‑in‑law. Mr. Tikamdas has, however, been unable to show us any authority for the, proposition that where a daughter‑in‑law is widowed after the death of her father‑in‑law, she is entitled to maintenance out of the estate left by the father‑in‑law to his heirs. We think the condition precedent attaching to the moral liability of a father‑in- law to maintain his daughter in‑law ‑is the predecease of his married son. In' this view, it is ‑not necessary to consider the effect of the will made by Haji Ramzan on the right of main tenance of the appellant by the respondents, and we would, there fore, refrain from assenting to or dissenting from all following reported cases which were cited before us Sankaramurthi v. Subbamma A I R (25) 1938 Mad. 914, Chhaganial Haribhai v. Dhondu 27 Born. 607 ; Bai Parvnti v. Dolatram 25 Bom. 263 ; Saboo Sidtck v: Ayesh Bai 30 I A 127 '; 27 Bom. . 485 ; Gopal Chandra v. Kadambini Dasi A I R (11) 1924 Cal. 364 and Jeot Ram Chaudhari v. Mst. Lanji A I R. (16). 1929 All.,

751. On au appropriate occasion we will indicated our preference. On any view of the case, we think the appellant is not entitled to maintenance from the estate of Haji Ramzan in the hands of the respondents. We would accordingly affirm the judgment and decree of the lower Court, and dismiss the appeal with costs. A. H. Appeal dismissed: