BHAWARSINGH Vs. PILABAI

JUDGEMENT

(1.) THE facts giving rise to this appeal are that Bhawarsingh, the defendant No. 1 who is now appellant No. 1 in this appeal, had two sons, namely. Audhram and basant, who are both dead. Audhram died in 1948 leaving behind his widow pilabai, who is the plaintiff-respondent. Basant died leaving behind his son bhuwan. Bhuwan also died leaving behind his son Ghiwchand, who was defendant no. 2 and is now appellant No. 2. The suit was filed by Pilabai, widow of Audhram, against Bhawarsingh and Ghiwchand for partition of joint family property. A preliminary decree was passed in the suit on October 31, 1964 by which the plaintiff was declared to have 1/3rd share in the property. The preliminary decree for partition was confirmed by the Second Additional District Judge, Durg, in first appeal. The defendants then came up in second appeal.

(2.) THE only point raised in the memo of appeal was that Bhawarsingh's wife dheliyabai was not impleaded in the suit and, therefore, the suit was defective. It is now pointed out the Dheliyabai died during the pendency of the appeal on december 2, 1966. This fact is not disputed by the learned counsel for the plaintiff-respondent. The argument of the learned counsel for the appellants is that though the preliminary decree for partition did not declare any share in favour of dheliyabai as she was not a party, yet in law she became entitled to l/4th share in the property on the date of the preliminary decree which, on her death in 1966, passed to appellant No. 1 Bhawarsingh, who was her husband and. therefore, the division should now be in the following shares:-Plaintiff (Pilabai) -1/4th shares ghiwchand -1/4th share and bhawarsingh -1/2 share.

(3.) LEARNED counsel for the respondent does not dispute that if Dheliyabai had any interest in the property, that would solely pass to Bhawarsingh on her death and the plaintiff and other defendant would, in that case, be entitled to only 1/4th share in the property and Bhawarsingh would be entitled to 1/2 share. He, however, contends that Dheliyabai's right to share in the property could have arisen only after the making of a final decree actually dividing the property by metes and bounds. For this proposition, the learned counsel for the respondent relies upon Pratapmull Agarwalla v. Dhanbati Bibi, AIR 1936 PC 20.