ORDER

1. This appeal under section 100 of the CPC has been preferred by defendants No.1 to 10 against the judgment and decree dated 23.9.2022 passed in RCA No. 139/2019 by the Ist Additional District Judge, Narsinghgarh, District Rajgarh arising out of the judgment and decree dated 29.4.2019 passed in RCS No.3/2018 by the Ist Civil Judge, Class-I Narsinghgarh, District Rajgarh.

2. The purpose of understating the dispute between the parties their genealogical tree is material which is as under:

3. The plaintiffs, heirs of deceased Jairam, instituted an action for declaration, partition and delivery of separate possession of their 1/3rd share in the suit lands. They submitted that the suit lands are ancestral lands of the parties but their proceedings for partition in respect of the same have been illegally dismissed by the revenue Courts who have directed them to approach the Civil Court in view of dispute as regards title. It was submitted that upon death of Kaniram, his son Jairam and after him the plaintiffs have 1/3rd share in the suit lands but defendants have been illegally recorded over 3/4th of the same.

4. The defendants contested the plaintiffs’ claim by filing their written statement generally denying all the pleas as raised by plaintiffs therein and submitted that the suit as framed is not maintainable and the Civil Court has no jurisdiction to hear the same.

5. The trial Court dismissed the plaintiffs’ claim upon holding that they have not adduced any evidence to show as to whether Jairam is presently alive or not hence the shares of the parties cannot be worked out and declared. The said judgment and decree has been reversed in appeal preferred by plaintiffs by holding that heirs of Bhanwarlal would be having 1/3rd share, heirs of Balram would be having 1/3rd share and plaintiffs would be having 1/4th share in the suit lands as heirs of Jairam and plaintiff Ghanshyam, Babloo and Basantibai shall have equal shares in the remaining 1/12th share.

6. Learned counsel for the appellants has submitted that the judgment and decree passed by the lower appellate Court is illegal and contrary to law. The same has been passed in utter violation of Rule 2 of section 16 of Hindu Succession Act, 1956. It has been illegally held that 1/4th share of Dalibai will be divided equally among her son Bhawarlal, Balram and heirs of deceased son Jairam. The share of deceased Dalibai would have to be equally divided into three shares and not twelve shares as has been held.

7. I have heard the learned counsel for the appellants and have perused the record.

8. Section 15 & 16 of Hindu Succession Act are as under :

15. General rules of succession in the case of female Hindus.—

(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,—

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub-section (1),—

(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in subsection (1) in the order specified ther