IMPORTANT POINT
Pre-existing right to maintenance of Hindu widow is not a right to property.

Mungeshwar Sahoo, J. —The plaintiffs have filed this Second Appeal against the judgment and decree dated 30.09.2003 passed by the learned 3rd Additional District Judge, Nawadah in Title Appeal No.15 of 1989/4 of 2003 whereby the Lower Appellate Court allowed the appeal and thereby reversed the trial court judgment and decree dated 17.03.1989 passed by the Additional Munsif, Nawadah in Title Suit No.32 of 1976/18 of 1989 dismissing the plaintiff’s suit.

2. The plaintiffs-appellants filed the aforesaid suit for partition of the suit property to the extent of half share. The plaintiffs claimed the aforesaid relief of partition to the extent of half share alleging that Pran Mahto was the common ancestor of the parties who died leaving behind 3 sons namely Rajnath Mahto, Ramo Mahto and Govind Mahto. After the death of Pran Mahto, three sons came in possession of the suit property. Rajnath Mahto and his wife died issueless, therefore, Ramo Mahto and Govind Mahto came in possession jointly over the entire suit property by the rule of survivorship. Both the brothers separated in mess and dwelling house and partitioned their movable properties half and half but remained in joint possession in immovable properties described in Schedule A of the plaint. Ramo Mahto died in the year 1939 leaving behind his widow, Deoki Kunwar, plaintiff no.1 and daughter, Lacchmini Devi, plaintiff no.2 and her son, plaintiff no.3. After death of Ramo Mahto, the plaintiffs came in possession of the immovable suit properties. Govind Mahto died in the year 1974 leaving behind his two sons namely Raj Kumar Prasad and Nand Kishore Prasad who came in joint possession of the properties. After the death of Govind Mahto, differences arose in the family regarding cultivation of the suit land. Hence, the suit was filed by the plaintiffs.

3. The defendants appeared and filed contesting written statement mainly contending that Ramo Mahto continued as member of the coparcenery family and there was neither any separation nor partition between Ramo Mahto and Govind Mahto. Ramo Mahto died in the year 1935 on 20.03.1935 in the state of jointness with Govind Mahto. The plaintiff no.1 being the widow was entitled to maintenance only which she has been receiving which has also been noted in the current survey record of right. On the death of Ramo Mahto, the property devolved on Govind Mahto by the rule of survivorship. The plaintiff no.1 being a widow prior to coming into force of 1937 Act i.e. Hindu Women’s Right to Property Act, 1937 had only the right to maintenance.

4. The trial court decreed the plaintiff’s suit recording the finding that Ramo Mahto died in the year 1939. There is unity of title and possession between the parties and accordingly, decreed the plaintiff’s suit. Appeal was filed by the defendants-respondents. The Appellate Court after re-appreciating the evidences recorded a finding that Ramo Mahto died in the year 1935 and reversed the finding of the trial court and then allowed the appeal and trial court judgment was set aside.

5. It appears that this Second Appeal was heard in admission matter by this High Court on 24.06.2008 and the Second Appeal was dismissed finding that the question which was sought to be raised regarding the year of death of Ramo Mahto was a question of fact and not a substantial question of law. The appellant then filed review application which was also dismissed. Thereafter, the appellant filed Civil Appeal No.2419-20 of 2010 before the Apex Court and the Apex Court allowed the Civil Appeal and set aside the order passed by this High Court and the Apex Court framed the substantial question of law for decision in this Second Appeal and remitted the matter. The substantial question of law formulated by the Apex Court is quoted hereunder:

“Whether the right to maintenance of a widow is a pre-existing right which existed under the Hindu Law long before the Acts of 1937 or 1946 came into existence. In other words the