A daughter is entitled to a share in the property of her father, even if she was not a party to a previous partition suit in which her branch was not adequately represented.

P. K. TRIPATHI, J.

( 1 ) IN this Letters Patent appeal, the legal representatives of deceased respondent No. 6 have challenged the judgment dated 16-9-1989 in First Appeal No. 91 of 1975 of this Court, which had been preferred against the judgment and decree in Title Suit No. 28 of 1972-I of the Court of Subordinate Judge, Bhadrak. Plaintiff in that suit was the appellant and now respondent No. 1 in this appeal. Defendant No. 6 was the respondent No. 6 in the First Appeal, but his widow and son filed this Letters Patent appeal and the widow being dead, out on prayer of the above appellant her name has been deleted from the record.

( 2 ) THE brief narration of the background fact will reveal the dispute between the parties. The plaintiff in title Suit No. 28 of 1972 of the Court of Subordinate Judge, Bhadrak has given the following genealogical table to show the inter se relationship between the plaintiff and defendants 1 to 8. The plaintiff filed the aforesaid suit for partition claiming herself to be the daughter of Sanatan, who admittedly died after the Hindu Succession Act, 1956 came into force. Admittedly, parties are Hindus governed by the Mitakshara School of personal law and Hindu Succession Act, 1956. Defendant No. 6 only contested the suit. In the written statement, inter alia, he stated that plaintiff is not the daughter of Sanatan, but the daughter of one Brundaban Bhanja of Sola Sahi who had married to the sister of Kalandi, who is the husband of defendant No. 2 and father of defendant Nos. 1 and 3 and that Title Suit No. 8/32 of 1966-64, a suit for partition in the Court of Subordinate Judge, Balasore, was decreed on compromise wherein Sanatan's branch was duly represented by his widow Adiri Dei (defendant No. 7) and son Eakadasi Das (defendant No. 8 ). He further pleaded that plaintiff not being the daughter of late Sanatan was not a party in that suit. His further case is that after the final decree in the suit, at the stage of delivery of possession in accordance with that decree, this case has been foisted with false assertion at the instance of defendant Nos. 7 and 8 who are not related to the plaintiff as mother and brother. Defendant No. 9, an outsider, also filed a written statement as the purchaser of lands from some of the persons described in the genealogy and prayed that in case the suit property is partitioned, a separate allotment should be made in respect of the properties which he had purchased from that family.

( 3 ) EXCEPT disputing inclusion of the name of the plaintiff as the daughter of Sanatan and omissions relating to the names of the wife and son of defendant No. 6 and the wives of defendant Nos. 1 and 5, the correctness of the genealogy is not disputed.

( 4 ) IN Title suit No. 8/32 of 1966-64 the present defendant Nos. 7 and 8 were figuring as defendant Nos. 1 and 2 and the present defendant No. 6 with his wife Rambhamani and son Gaurahari were the plaintiffs. The other branches were duly represented. In the present suit for partition. (Title Suit No. 28 of 1972) in answering issue No. 3 learned Subordinate Judge, Bhadrak held that plaintiff is the daughter of late Sanatan and Adiri (defendant No. 7 ). However, while answering issue No. 6 and consequentially issue No. 7 he held that in the previous suit for partition (T. S. No. 6/32 of 1966-64) the branch of Sanatan was sufficiently represented through his widow and son i. e. , the present defendant Nos. 7 and 8. Accordingly, he dismissed the suit on context against defendant Nos. 6 and 9 and ex parte against the rest. Plaintiff challenged the said judgment and decree in F. A. No. 91 of 1975. During pendency of that appeal, defendant/respondent no. 6 died and was substituted by his legal representatives Rambhamani Dei and Gaurahari Das.

( 5 ) IN the judgment under challenge, this Court allowed the appeal and decreed the suit for partition recording the findings that plaintiff is the daughter of Sanatan and in Title Suit No. 8/32 of 19