G. K. MISRA, J.

( 1 ) GOBARDHAN (defendant No. 2) and Duryodhan Panigrahi (defendant-1) are brothers. Shakuntala (not a party to the suit) is the wife of defendant No 1. Biranchi (husband of plaintiff Lilabati and the son of defendant No. 1 died in 1949. In 1960 plaintiff brought the suit for partition claiming eight annas interest in schedule B property of the plaint which fell to the share of defendant No. 1 in a partition between the two brothers. Defendant No. 1 had claimed that one Ranjit was his adopted son. This argument has been found against by the Courts below. Plaintiff's suit is based on the averment that on the death of Biranchi in 1949, she was entitled to the same interest as her husband had in schedule B property. Defendant No. 1 contested the suit alleging that Shakuntala was a necessary party and is entilled to one-third share. The Courts below negatived the defence contention and decreed the suit for partition of eight annas interest in favour of the plaintiff in schedule B property. Against the appellate decree the second appeal has been filed by defendant No. 1.

( 2 ) LAW is well settled that when the husband is alive, the wife herself cannot demand a partiti