SIROMANI SIROMANI Vs. HEMKUMAR DINMANI

JUDGEMENT

(1.) This appeal is brought, by special leave from the judgment of the High Court of Madhya Pradesh Jabalpur dated November 8, 1963 in second Appeal No .569 of 1960.

(2.) Respondents Nos. 1 and 3, Hemkumar and Dinmani and appellant No. 1 Siromani are the sons of late Dharam Singh Agharia. Appellant No. 2 Mst. Subhagwati is the second wife of Dharam Singh and the mother of appellant No. 10 Mst. Jampalhin, the mother of respondents l and 3 died before Dharam Singh married appellant No 2. The relationship of the parties will appear from the following pedigree :

(3.) It is not disputed that the parties are governed by the Benaras School of Hindu Law. It appears that Dharam Singh was murdered in 1940 and his son Hemkumar was involved as an accused but he was acquitted in that case. Mst. Subhagwati, appellant No. 2 appeared as a prosecution witness in the murder case and deposed against Hemkumar. At the time of his death, Dharam Singh had left 102.28 acres of ryoti land in village Tilgi and 16.56 acres of ryoti land at village Supaka and also some house properties Appellants 1 and 2 instituted C. S. No 43-A of 1956 in the court of the Civil Judge, First Class, Raigarh claiming that they were entitled to 1/4th share each of Dharam Singh's estate and there should be Partition by metes and bounds of the joint family properties. They challenged the validity of Ex D-4 dated December 27, 1943. It was alleged that Mst. Subhagwati was compelled by Hemkumar under threat of violence to execute the deed Ex. D-4. It was said that the deed Ex. D-4 was prejudicial to Siromani who was a minor at that time because he was given less than the share to which he was entitled and his mother Mst. Subhagwati was also not given her due share of joint family properties. The appellants accordingly prayed that there should be a fresh partition by metes and bounds of the joint family properties and they should be given 1/4th share each there in. The suit was resisted by the respondents on the ground that the parties were bound by the deed of partition, Ex. D-4 and there was no ground for reopening the partition which had already taken place. The trial judge found that the partition deed, Ex. D-4 dated December 27, 1943 was not executed by Mst. Subhagwati under undue influence and that document was acted upon. It was further held by the trial judge that though the partition deed did not ret serve any share to Mst. Subhagwati. the appellants were not entitled to reopen the partition because Mst. Suhhagwati was not entitled to a share and Hemkumar was entitled to an increased share on account of the custom of "Jethunsi". The appellants took the matter in appeal to the District Judge of Raigarh but the appeal was dismissed. The appellants preferred a second appeal to the High Court of Madhya Pradesh which dismissed the second appeal. The High Court took the view that the deed, Ex. D-4 was neither an award no was it a document effecting partition of immovable properties of the value of more than Rs. 100. It was held that Ex D-4 was admissible in evidence in order to show that there was separation of status between the coparceners. The High Court also rejected the plea of the appellants that the partition should he reopened because it did not give a share to Mst. Subhagwati. According to the Benares School of Hindu Law, Mst. Subhagwati was entitled to a share in the joint family properties equal to that of a son but the High Court found that there was a clear acquiescence on the part of Mst. Subhagwati when she executed the deed, Ex. D-4 and it must be taken that she relinquished her share in favour of the other coparceners. On the question of "Jethansi" claimed by Hemkumar, the High Court found that the evidence established the custom of "Jethansi" whereby the elder son was given a greater share in the property of his father. On the basis of these findings the High Court dismissed the second appeal.