The main legal point established in the judgment is the application of Sec. 6 and Sec. 8 of the Hindu Succession Act to determine the devolution of shares in the co-parcenary property.

P.K.Deb, J.

1. This appeal has been preferred against the judgment and decree dated 20.7.1995 passed by Shri Tarkeshwar Pathak, Subordinate Judge, VII, Ranchi in Partition Suit No. 222 of 1993 decreeing the plaintiff-respondent No. IV suit for partition ascertaining her share to 10/56 over the joint family property.

2. The plaintiff-respondent No. 1 filed the above-mentioned partition suit seeking her 1/2 share over the property described in schedule of the plaint and also for allotment of her share separating Taktha on appointment of a survey knowing Advocate Commissioner and also for cost of the suit and other ancillary relief. The admitted position remains that one Bhujhawan Ram was the common ancestor of both the parties who died leaving behind his widow Kewala Kunar and a son Ram Niranjan Dayal. The said Ram Niranjan Dayal married twice. Tetar Kunari was his first wife while Jirkalo Devi defendant No. 6 (Appellant No. 2) is his second wife. Through Tetar Kunari Ram Niranjan Dayal has got a daughter Keela Devi, who is the plaintiff respondent No. 1 in the case. Through second wife Jinkalo Devi, Ratna Niranjan Dayal has got two sons, namely, Suryanarain Dayal (Defendant No. 1) Shyamnarain Dayal (defendant No. 2) appellant. No. 1 and three daughters Kamla Devi Defendant No. 3, Maya Devi, Defendant No. 4, and Friti Lata, Defendant No. 5. Tetar Kunari mother of plaintiff died on 17.1.1987 leaving behind plaintiff as her heir and legal representative. According to the plaintiff, the properties described in Schedule of the plaint is the joint family property of both the parties although the properties described in items No. I, II, III, IV and VII were recorded in the name of Kewala Kunari, mother of Ram Niranjan Dayal while Item Nos. V and VI were recorded in the name of Ram Niranjan Dayal The properties always remained joint and being possessed jointly by all the coparceners. It has been averred in the plaint that the defendant No. 2-appellant No. 1 Shyamnarain Dayal earlier filed the partition suit, being partition suit No. 238 of 1992 in the Court of Sub-Judge, Ranchi against the plaintiff, Jirkalo Devi and her children and in that partition suit, it was admitted by both the parties that the properties were joint and being jointly possessed by all the coparceners. But, the plaintiff with the motivated intention in that partition suit ultimately withdrew the suit stating some formal delects in the plaint. According to the plaintiff, he was not feeling convenient to remain joint with the defendants in respect of the suit properties and she was not in a position to beneficially enjoy her share in the property along with the defendants and, as such, she requested the defendants for amicable partition of the joint family but on this pretext or the other the defendants avoided the same and hence the present suit. The cause of action for the suit arose on 13.10.1993 and on other subsequent date when the plaintiff allegedly requested the defendants to effect amicable partition and refused by the defendants. Hence, the plaintiff claims her half share over the joint family property and for separate takhta and others as mentioned above.

3. The suit has been contested by defendant No. 2 Shy am Narain Dayal and defendant No. 6 Jirkalo Devi who are the appellants in the present appeal by filing joint written statement. Others have not con tested the suit. In the written statement, it was contended by the appellants-defendants that the suit was not maintainable in its present form, that the suit was barred by law of limitation, waiver, ouster and adverse possession and estoppel. According to the defendants, the plaintiff and the defendants are coming from the same Mitakshara Joint Family but the defendant Nos. 1 and 2 and their father Ram Niranjan Dayal till he was alive found the Hindu co-parcenary recognised under the Mitakshara School of Hindu Law. Although the geneology given by the plaintiff as per mentioned below has been admi