JUDGEMENT 1. This appeal, preferred by defendants, under Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 0309-1985, passed In Civil Appeal No. 21 of 1981, whereby, learned District Judge, Almora has set aside the judgment and decree dated 24-11-1981 by the then Munsif, Ranikhet in original Civil Suit No. 32 of 1980. 2. Brief facts of the case, are that Dr. B.C. Singh (original plaintiff) instituted original suit No. 32 of 1980 for dispossession of the defendants, with the plea that he and his deceased wife Dr. Stella Lillian Singh purchased on 1102-1952 an immovable property known as Capel Cottage situated within the limits of Ranikhet cantonment. Dr. Stella L. Singh died on 20-03-1976 without leaving any issue. Since both husband and wife were Christians, as such, the plaintiff pleaded that he became the sole owner of the property after death of his wife. The Capel Cottage consists of Cottage No. 2/3, its Annexe No. 2/3/4 and another Annexe No. 2/3/5, all situated in survey number 199. It was further pleaded that Dr. (Mrs.) Stella L. Singh, in 1968 met defendant NO.1, Mr. J.M. Uta rid (since dead) at Delhi, and invited him to come to Ranikhet, whereafter, since December 1969 he started living with Dr. B.C. Singh and his wife Dr. Stella L. Singh. After sometime, one of the Annexe, which was in occupation of some tenant got vacated and defendant No. 1 was permitted to live in said Annexe of Capel Cottage. However, 'after death of Dr. (Mrs.) Stella L. Singh on 20-03-1976, defendant No. 1 and his sons started representing themselves as legal heirs of Dr. (Mrs.) Stella L. Singh and claimed themselves to be co-owners of the property. On this Dr. B.C. Singh (original plaintiff) served a notice on them for vacating the Annexe and' instituted a S.C.C. Suit No. 04 of 1978, but the same was dismissed on 28-08-1978 as the plaintiff failed to prove tenancy of the defendants. The revision filed against said judgment and decree was also dismissed on 26-031980. Defendant NO.2 (Joseph Utarid) and defendant NO.3 (Peter Utarid) are sons of defendant No.1; Mr. J.M. Utarid. The revision filed against said judgment and decree was also dismissed on 26-031980. Defendant NO.2 (Joseph Utarid) and defendant NO.3 (Peter Utarid) are sons of defendant No.1; Mr. J.M. Utarid. After losing said S.C.C. Suit No. 04, of 1978 and revision filed against it, the plaintiff has instituted another suit from which this appeal has arisen, alleging that the defendants were his licencees and the licences were terminated by notice, served on them on 04-10-1980. Since, the defendants failed to vacate the premises, hence the above mentioned another suit No. 32 of 1980 was filed. The plaintiff, apart from seeking dispossession of the defendants also sought mesne profits at the rate of Rs. 125 per month. 3. The defendant-appellants contested the suit before the trial court and filed their written statement, wherein they have pleaded that they were related with Dr. (Mrs.) Stella L. Singh with the pedigree shown as under: In the written statement, it was further pleaded that defendant NO.1 being cousin of Dr. (Mrs.) Stella L., Singh was her kindred, as such, succeeded 1/4 share in her property. Denying the fact, alleged in the plaint that defendants are licencess, it is stated by them that neither the property was ever let out to them, nor are the defendants living as licencees' after death of Dr. (Mrs.) Stella L. Singh, as such, they are neither liable to be dispossessed nor liable to pay any mesne profits . 4. Learned trial court framed as many as 12 Issues, on the basis of the pleadings of the parties and, after recording the evidence and hearing the parties, dismissed the suit holding that, Infact, defendants being kindred of Dr. (Mrs.) Stella L. Singh succeeded V. share In the property and are not liabie to be dispossessed. Aggrieved by said judgment, the plaintiff filed Civil Appeal No. 21 of 1981 before the District Judge, Almora, who after hearing the parties, allowed the appeal holding that since Ida Uta rid was alive at the time of death of her sister Dr. (Mrs.) Stella L. Singh, as such, the property could not have been succeeded by the defendants and decreed the suit for dispossession of the defendants and also for mense profits at the rate of Rs. 50/- per month w.e.f. 04-10-1980. Now, the defendants have preferred this second appeal against said order. 5. (Mrs.) Stella L. Singh, as such, the property could not have been succeeded by the defendants and decreed the suit for dispossession of the defendants and also for mense profits at the rate of Rs. 50/- per month w.e.f. 04-10-1980. Now, the defendants have preferred this second appeal against said order. 5. I heard learned counsel for the parties at length and also perused the entire record. (Also alongwith this appeal, I heard the parties in connected First Appeal No. 181 of 2001 arising out of original suit No. 32 of 1980 regarding grant of probate in respect of Will dated 15-11-1980 executed by Dr. B.C. Singh which Is also being disposed of today separately.) 6. The substantial question of law involved in this case, is as under : "Whether, in view of the finding of the court below that v.. share in the property in dispute belongs to Ida Utarid, and since, she neither joined the suit nor terminated the licence or the lease, any order of eviction against the defendants could be passed 7" 7. Admittedly, Dr. B.C. Singh (original plaintiff) and his wife Dr. Stella L. Singh jointly owned the house in guestion known as Capel Cottage in Ranikhet. It is also not disputed that Dr. Stella L. Singh died Issueless on 20-03-1976. Since, the property was joint. as such, as per eguity each one of Dr. B.C. Singh and his wife Dr. Stella L. Singh. owned V2 share in said property. There is no doubt, that the succession of the property, in the present case, is governed by the Indian Succession Act. 1925. Chapter II of said Act. provides rules in case of Intestates other than Parsis, Section 32 of the Act, reads as under: "32. Devolution of such property.- The property of an intestate devolves upon the wife or husband, or upon those who are of the kindred of the deceased, in the order and according to the rules hereinafter contained in this Chapter," Explanation. - A widow is not entitled to the provision hereby made for her if, by a valid contract made before her marriage, she has been excluded from her distributive share of her husband's estate." Section 35 of the Indian Succession Act, 1925, provides as under: "35. - A widow is not entitled to the provision hereby made for her if, by a valid contract made before her marriage, she has been excluded from her distributive share of her husband's estate." Section 35 of the Indian Succession Act, 1925, provides as under: "35. Rights of widower.- A husband surviving his wife has the same rights in respect of her property, if she dies intestate, as a widow has in respect of her husband's property, if he dies intestate," From the reading of aforesaid two Sections, It is clear, that apart from V2 share, which the original plaintiff Dr, B.C. Singh possessed, he further succeeded share from the share owned by his wife who died on 20-03-1976. This Court, has to examine to what extent the share was succeeded by the husband, According to the plaintiff-respondent, Dr. B.C. Singh, he succeeded entire share of his wife, while the defendant-appellants say that he succeed only half of the half share of his wife and they succeeded remaining Y4 share as kindred of the deceased. On behalf of the plaintiff-respondent, my attention was drawn to Clause (c) of Section 33 of the Indian Succession Act, 1925 read with Section 35 (quoted above) and it is argued that the husband succeeded the entire property. Section 33 of the aforesaid Act, provides as under : "33. Where intestate has left widow and lineal descendants, or widow and kindred only, or widow and no kindred.- Where the intestate has left a widow- (a) if he has also left any lineal descendants, one-third of his property shall belong to his widow, and the remaining two-thirds shall go to his lineal descendants, according to the rules hereinafter contained; (b) Save as provided by section 33A, if he has left no lineal descendant but has left persons who are of kindred to him, one-half of his property shall belong to his widow, and the other half shall go to those who are kindred to him, in the order and according to the rules hereinafter contained; (c) If he has left none who are of kindred to him, the whole of his property shall belong to his widow." On behalf of the plaintiff-respondent Clause (c) read with Sec. 35 is being relied to claim the full share, while on behalf of defendant-appellants Clause (b), as quoted above, is being relied to claim Y4 share. The expression 'kindred' is explained in Section 24 of the Indian Succession Act, 1925, which provides that kindred or consanguinity is the connection or relation of persons descended from the same stock or common ancestor. It is established from the record, that Dr. (Mrs.) Stella L. Singh and defendant NO.1, had a common ancestor, Mr. M. Utarid, as such, the defendant NO.1 could be said to be a kindred of the deceased. That being so, it appears that trial court has rightly held that, since, defendants being kindred, owned Y4 share after death of Dr. (Mrs.) Stella L. Singh and as such are not liable to eviction as they cannot be said to be licencee of the plaintiff. From the record, it is also clear, that the original plaintiff (Dr. B.C. Singh), earlier also before institution of suit, in an attempt to claim full ownership of the property in suit sought probate in respect of Will dated 29-01-1976, allegedly executed by Dr. (Mrs.) Stella L. Singh, but said suit No. 07 of 1977 was dismissed on 27-08-1980, whereby Dr. B.C. Singh was refused probate on the basis of the Will dated 29-01-1976, allegedly executed by his wife Dr. Stella L. Singh. In said judgment learned District Judge, Aimora found the Will to be a suspicious document. Now, this Court has to examine question relating to Ida Utarid, sister of Dr. (Mrs.) Stella L. Singh, who migrated to Pakistan at the time of partition. If she, being nearer kindred, succeeds share in the property of Dr. (Mrs.) Stella L. Singh, the defendants being distant kindred get ousted. In the connected First Appeal No, 181 of 2001, arising out of Suit (Probate) No. 02 of 1997, between the parties (instituted by Kamal Singh, Executor, regarding the Will of Dr. B.C. Singh) Miss Ida Utarid has got filed her affidavit sent from Pakistan stating that she does not claim any share in the property in question. And, in view of said affidavit dated 14-03-1981 and the fact that she migrated to Pakistan, it can be said that she relinquished her share in the property of Dr. (Mrs.) Stella L. Singh on her death. That being so, the learned trial court appears to have rightly held that Y4 of the share in the property was inherited by the defendants and they were not licencee after death of Dr. (Mrs.) Stella L. Singh on her death. That being so, the learned trial court appears to have rightly held that Y4 of the share in the property was inherited by the defendants and they were not licencee after death of Dr. (Mrs.) Stella L. Singh, and the learned lower appellate court has erred in law by holding that Ida Utarid succeeded ¼ share. Once the defendants succeeded ¼ share in the property of Dr. (Mrs.) Stella L. Singh after her death, their status of licencee got terminated, rather, their possession in the property is now that of a co-owner. 9. It is also pertinent to mention here, that during the pendency of this litigation, Dr. B.C. Singh has died and one Kamal Singh, 5/0 late Mr. Kushai Singh and Shyam Singh, 5/0 Mr. Amar Singh, got themselves substituted in the Second Appeal, claiming themselves to be legal representatives on the basis of Will dated 15-11-1980 executed by Dr. B.C. Singh in respect of which probate has been granted on 28-10-1998 in suit No. 02 of 1997. However, the legal representatives cannot have the better title than that of the original plaintiff. As such, the original plaintiff or his legal representatives have only 'Y. share in the property in suit, out of which half share which Dr. B.C. Singh initialiy possessed and 1/4 share he inherited (as 1/2 of the 1/2 share of his wife) under Clause (b) of Section 33 read with Section 35 of the Indian Succession Act, 1925. Remaining V. share being inherited by the defendants, they cannot be said to be licencee nor they can be dispossessed by terminating any licence. The only remedy for the plaintiffs is to get the property partitioned, whereafter, the parties may get exclusive possession over their respective shares. 9. In the circumstances, in view of above discussion, the substantial question of law Is answered in favour of the defendant-appellants holding that Miss Ida Utarid who has been migrated to Pakistan before death of Dr. (Mrs.) Stella L. Singh since inherited no share (as she relinquished it), as such, her non-joinder or not canceling the licence on her behalf, does not make difference in this suit. Since, the lower appellant court has erred in law by holding that Ida Utarid ownes Y. share, the appeal deserves to be allowed. Accordingly, the appeal is allowed. (Mrs.) Stella L. Singh since inherited no share (as she relinquished it), as such, her non-joinder or not canceling the licence on her behalf, does not make difference in this suit. Since, the lower appellant court has erred in law by holding that Ida Utarid ownes Y. share, the appeal deserves to be allowed. Accordingly, the appeal is allowed. The impugned judgment and order dated 03-09-1985 passed in Civil Appeal No. 21 of 1981 is set aside, and the Civil Suit No. 32 of 1980 shall stand dismissed as decided by the trial court vide its judgment and order dated 24-11-1981. Amount deposited by the appellants may be withdrawn by them. No order as to costs.