Benson and Sundara Ayyar, JJ.:— A preliminary objection is taken in this case that no Second Appeal lies against the decision of the Subordinate Judge as the suit is of a Small Cause nature and as the amount sought to be recovered by the plaintiff is less than Rs. 500. The learned vakil for the appellants contends that the cognizance of this suit by the Small Cause Court is barred by article 28 of the second schedule to the Provincial Small Cause Courts Act. The question is whether this a suit for the whole or for a share of the property of an intestate. If the plaintiff seeks to claim the property as hair of any person then apparently article 28 would apply. The maintainability of the Second Appeal therefore depends on the construction to be placed on the plaint. As we read the plaint, the suit is clearly not based on the plaintiff's right to inherit but on her right to the return of jewels presented by her. The claim is rather a curious one.
“The plaint alleges that the plaintiff made certain presents to her son-in-law on the occasion of the marriage of her daughter and the son-in-law. Both the son-in-law and the daughter died subsequently. The daughter died after her husband; now the allegation in the plaint is that the ‘plaintiff is entitled, after the death of the pair according to the custom of the caste; to those (i.e, presents) presented by the plaintiff's family, and defendants are entitled to those presented by the defendant's family.’” What was sought to be proved was that on the death of the bride and the bridegroom the plaintiff was entitled to the return of the presents made to the bridegroom. It is not stated in the plaint that the plaintiff was the heir either of the bridegroom or the bride with respect to the property inherited by the latter from her husband. In the case of heir ship the property in question is taken from the person whose heir the plaintiff claims to be as his or her property. The claim is, as we understand it, not to inherit the property of the bridegroom or of the bride but to a return of what was presented, the basis of the action being that the right derived under the gift made on the occasion of the marriage determined on death of the bridegroom and the bride, and the property returned to where it was before or rather to the parents of the bride. It is a case of the determination of the right granted and the revival of the original right of ownership and not a case of inheritance from the person to whom the presents were given. Article 28 is therefore not applicable and as no other article bars the cognizance of the suit by the Small Cause Court it must be held to be of a Small Cause nature and the Second Appeal must be held to be incompetent. On this ground we dismiss the Second Appeal with costs.
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