GIRJABAI Vs. PADMABAI

JUDGEMENT

(1.) THIS appeal has been preferred by appellant -defendants under section 100 of the Code of Civil Procedure against the judgment and decree dated 26th June 1968 passed by First Additional District Judge, Durg, in Civil Appeal No. 5 -4 -A of 1964.

(2.) FACTS of the case in brief are that the respondent -plaintiff no. 1 Mst. Padmabai and her son Nand Kishore (plff no. 2) had filed the present suit for partition of immovable and movable property on the allegations that the same belonged to the joint Hindu family. The respondent -plaintiff was the wife of deceased Janva who along with Daulat (deft. no. 1), now dead, were members of a joint Hindu family which owned immovable property shown in schedules A and B in the plaint excluding a house in possession of one Balaram. It was not disputed before the lower appellate Court that the respondent plaintiff Mst. Padmabai was the first wife of deceased Janva except for a period of four months after her marriage she never lived with her husband and continued to stay with her parents. Her son Nand Kishore (plff. no. 2) was born to her in her father's house. Deceased Janva had a second wife named Girjabai (deft. no 2) and through her a son Dharampal (deft. no. 3). In 1954, respondent -plaintiff no. 1 Mst. Padmabai also had applied under section 488 of the Code of Criminal Procedure for maintenance which was granted. Subsequently, her husband Janva died in April 1961. According to the plaintiff they had a right for half share and partition be effected by metes and bounds of the suit property.

(3.) THE first Court held that a partition had taken place between Janva and Daulat (deft. no. 1. now dead) The said Court further held that though respondent -plaintiff no. 1 Mst. Padmabai was the wife of Janva and no divorce had taken place, but since she was living away from her husband, the son Nand Kishore (plff. no. 2) born to her, was her illegitimate child and being so, the claim of Nand Kishore (plfr. no. 2) was dismissed. As regards respondent -plaintiff no 1 Mst. Padmabai was concerned, she was held entitled to 1/4th share in her husband Janva's property and seperate possession after partition since while the property was found in possession of defendants no. 2 and 3, namely, second wife of Janva and a son born from her who were held entitled to 1/4th and 1/2 shares respectively. Thus a preliminary decree was passed in the partition suit.