IMPORTANT POINTS
Scope of Section 3(2) of Hindu Women's Rights to Property Act, 1937, and Section 6 Hindu Succession Act, 1956 discussed.

JUDGMENT

Ranjan Gogoi, J. - The appellants are the defendants in a partition suit filed by the respondents, as plaintiffs, seeking partition of various properties specifically mentioned in Schedule 'B' and Schedule 'C' of the plaint.

2. At the outset, the following genealogical table is being set out to enable a clear and easy understanding of the facts and the findings with regard to the entitlement of the parties that would be arrived at in the course of the deliberations that follow.

Table

3. The case of the respondents plaintiffs is that Fuchan Mahto (died in 1940), the common ancestor of the parties had a son Muthu Sao who died in the year 1961. Mithu Sao had two wives, namely, Temni (1st wife) and Bilaso Devi (2nd wife). At the time of the filing of the suit for partition Temni (1st wife) was no more. The defendants in the suit Ramnath, Kashinath Buchwa are the sons and daughter of Mithu Sao and Temni (1st wife) whereas the plaintiffs Govardhan, Jagdish, Baldeo and Sarita are the sons and daughter of Mithu Sao and Bilaso Devi (2nd wife), who is a co-plaintiff.

4. According to the plaintiffs, they along with the defendants constituted a joint Hindu Mitakshra family which owned ancestral land recorded under Khata No.19 of village Lapanga in the district of Hazaribagh. It is the case of the plaintiffs that the joint family also acquired lands in several other villages in the name of one or other members of the joint family. According to the plaintiffs, the parties continued in joint possession of the properties, both ancestral and subsequently acquired. As the members of joint family had increased it became inconvenient to continue to remain joint. Hence the suit for a decree of partition was filed.

5. The defendants contested the suit, inter alia, on the ground that there was no unity of title and possession between the parties. According to the defendants, after the death of Mithu sao in the year 1961 or even before his death there was disruption in the family on account of the fact that Mithu Sao had married twice. There were serious differences in the family and the children of the first wife Temni separated from Mithu Sao. It is the case of the defendants that after the death of Mithu Sao the children of first wife and second wife again separated. The defendants pleaded that as there was no joint family in existence both the parties had separate earnings and only the ancestral lands of Khata No.19 are available for partition, major portion of which had been acquired by the Government and compensation amount had been evenly distributed amongst the parties according to their respective shares. According to the defendants, the other items of the Schedule property are self-acquired properties which are not liable to be partitioned.

6. The learned trial Court decreed the suit holding that the plaintiffs are entitled to the extent of 63-1/2 paise share in the Schedule 'B' property; items 1 to 8 of village Labaga in Schedule 'C'; items 1 and 2 of village Rasda in Schedule 'C'; and items 1 to 8 of village Hafuwa in Schedule 'C' properties and 12 paise share in the properties mentioned in Item No.9 of village Hafuwa in Schedule 'C' properties. The defendants appellants, on the other hand, were found to be entitled to the remaining 37-1/2 paise in the Schedule 'B' property and items 1 to 8 of village Labaga; items 1 and 2 of village Rasda; and items 1 to 8 of village Hafuwa in Schedule 'C' properties. By the said decree which has been affirmed in appeal by the High Court, so far as the property mentioned in item No.9 of Schedule 'C' is concerned, 12 and 11 paise share therein in favour of the plaintiffs and department have been granted. As the said property i.e. item No.9 of Schedule 'C' pertain to 23 paise share of the five sons of Muthu Sao in property purchased by them along with other persons by 8 different sale deeds, the said property is not the subject matter of the present appeal in its truncated form, as indicated earlier.

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