Under Munda customary law, a widow who leaves her deceased husband's village for good and resides permanently with her father or brother forfeits her right to enjoy the usufruct of her husband's lands.

Bahadur, J.

1. The appeal by defendants 1 and 2 arises out of a suit for partition of the half share of the two plaintiffs in the family properties, out of 101.96 acres of land appertaining to Revisional Survey Khewat Nos. 3, 4/1 and 4/2 of village Gondra within Police Station, Torpa in the district of Ranchi; the details of which have been described in the schedule appended to the plaint.

2. It will be useful to give below the genealogical table of the family of the parties:

430.htm

3. Shortly stated, the plaintiffs case is that the lands in dispute at the time of cadastral survey appertained to C. S. Khewat No. 4/1 and khata No. 8 under khewat No. 3, which were jointly recorded in the names of Junas, Prabhudeyal, Nabin and Nethenial, sons of Masidash, on one side; and Mansidh, grandfather of the plaintiffs, on the other, in equal shares. At the time of revisional survey, the defendants, however, surreptitiously got the aforesaid khewat split up, with the result that C. S. Khewat No. 4/1 was split up into two khewats, namely, khewat No. 4/1, being recorded in the names of the defendants, and khewat No. 4/2, being recorded in the names of the plaintiffs. Similarly, khata No. 8 under khewat No. 3 was split up into four khatas, namely, khata No. 19, which was recorded jointly in the names of the parties in equal shares, khata Nos. 20 and 21 were recorded exclusively in the names of the defendants; whereas khata No. 32 was recorded only in the names of the plaintiffs. The plaintiffs allege that the lands in the said khewats and khatas were distributed unevenly.

4. The case of the plaintiffs further is that the lands in suit were never partitioned between the parties or their ancestors either before or after the revisional survey and that the parties have been cultivating them in accordance with their convenience.

5. The suit has been contested by the three defendants. The substance of the case of defendants 1 and 2, who are the real contestants, is that although Masidash and Mansidh had separated in mess amicably prior to the cadastral survey due to the increase in the number of the family members of Masidash, yet their lands remained joint. In 1909, a partition had been effected between the four sons of Masidash on one side and Mansidh on the other, wherein some lands had been given in excess to the sons of Masidash in view of the fact that some of the joint parti and tanr lands had been turned into korkar by the branch of Masidash, as also Masidash had received some land in Jethans (excess) according to the custom prevalent amongst Mundas to give jethans to an elder brother. In 1938, there had been another partition between them, i.e., defendants 1 and 2 on one side and Nabin Munda (defendant No. 3) on the other. Their further case is that the suit is not maintainable as Mt. Bharosi, widow of Masidash has not been made a party in the suit.

6. Defendant No. 3 has substantially supported the case of the plaintiffs and has denied the allegation of defendants 1 and 2 in respect of partition amongst themselves in 1938.

7. The learned Additional Subordinate Judge of Ranchi, who tried the suit, came to the following conclusions:

(1) There was no custom among the Mundah whereby an elder brother was given land in jethans on partition

(2) There had been no partition between the four sons of Masidash on one side and Mansidh on the other in 1909; nor did the branch of Masidash turn any parti or tanr land into Korkar, as alleged by the defendants.

(3) Masidash was dead and his widow Bharosi had left the village for good after the departure of her husband; and as such the suit was maintainable.

8. Appearing on behalf of the defendants-appellants, Mr. Ray Paras Nath has challenged all the findings and has contended that the trial Court has committed error in its approach to the case, as it appears to have lost sight of the fart that the parties are Indian Christians and, therefore, there is no presumption of point-ness of the family L