KARHILEY Vs. HIRA

JUDGEMENT

(1.) This second appeal filed by defendants 1 to 3 was referred to a larger Bench as a point, very similar to the point now raised, was the subject-matter of a decision by a Pull Bench of this Court. One Lachman had five sons. We are not concerned with all the five, but one of his sons was Badan who died in the year 1938 leaving a widow Sm. Badana. Sm. Badana died in the year 1941 and after her death the names of the defendants, sons of Himma, brother of Badan, were mutated over a grove which it has now been found was the self-acquired property of Badan. At the time of Badan's death he had two brothers, Churai and Himma, surviving him. He bad another brother Ujagar who had predeceased him, whose son Chunnu is defendant 5. Churai had four sons and plaintiffs are three of the sons of Churai. The plaintiffs claimed a three-fourth out of one third share in this grove on the ground that on the death of Sm. Badan succession opened and the plaintiffs were entitled to the share mentioned above.

(2.) The contesting defendants 1 to 3 claimed that Badan was joint with their father Himma, and the grove was joint family property. They further pleaded that even if it was separate property of Badan, Himma, being a reunited brother, was a preferential heir.

(3.) The lower appellate Court has held that the grove, in suit was the self-acquired property of Badan, that Badan and Himma remained joint while Churai, plaintiffs' father, had separated but that it made no difference and the plaintiffs were entitled to the share claimed.