MAHANGI Vs. PHAILOO AND ANOTHER

JUDGEMENT

(1.) This second appeal has been referred to a Bench by a learned single Judge of this Court.

(2.) The Appellant Mahangi was the Defendant in a suit for partition brought by Phailoo Plaintiff No. 1 and Madan Plaintiff No. 2. The Plaintiffs are the maternal grandsons of Sital. The Defendant Mahangi is the son of Moti. Hanuman was the father of Moti and Sital. It appears that Hanuman made a gift or a house, of which partition is sought, to his sons Moti and Sital. Moti died leaving Mahangi as his sale heir and Sital died leaving his widow Payagi and four daughters including Smt. Rama, Smt. Bittan and Smt. Piare. All the three named daughters have sons. Payagi entered into possession of the house jointly with Mahangi and as heir of Sital. The Plaintiffs are the sons of Smt. Rama. Smt. Payagi and all the four daughters of Sital executed a gift deed on 25 -11 -1946 in respect of the half portion of the house in favour of the Plaintiffs and delivered joint possession to them along with the Defendant Mahangi. The Plaintiffs then filed a suit for partition claiming a half share (Share of Sital). The suit had been defended on various grounds. It was dismissed by the trial Court but decreed on appeal.

(3.) We are now concerned only with one ground, namely, the plea taken by the Defendant Mahangi that he was in any case entitled to the benefit of S. 4 of the Partition Act. This plea was negatived by the lower appellate court.