SUNDERLAL Vs. KAMTA PRASAD

JUDGEMENT

(1.) THIS is a second appeal under section 100 C.P.C. The following substantial questions of law were formulated at the time of the admission of this appeal by order dated 15.12.1986 : -

(2.) THE facts relevant for the decision of the questions referred above are that Baijnath was possessed of agricultural lands as ancestral property. He had five sons one daughter and a wife whose name was Darya Dulaiya. Plaintiff Kamta Prasad is his eldest son. There was a partition of the coparcenary property in which Baijnath got 9.46 acres of land in village Naukheda Tehsil Khurai, District Sagar. His wife was not given any share in the partition. After the death of Baijnath the question arose whether the plaintiff Kamta Prasad is entitled to 1/7th share in the lands left by his father. The trial Court and first appellate Court have upheld his claim. The contention of the appellants is that the earlier partition was not binding on the widown of Baijnath as she was legally entitled to a share equal to that of a son and now the lands left by her husband are exclusively her property and plaintiff Kamta Prasad is not entitled to any share in it.

(3.) THE question No. 1 mentioned above now does not arise because of the death of the widow. The suit for declaration was maintainable and on the basis of that declaration there can be actual partition between the co -sharers under Section 178 of the M.P. Land Revenue Code, 1959. That is the answer to question No. 2. The real point for determination is question no. 3. According to Mulla's Hindu Law, 15th Edition pages 435 -437, 315 wife -A wife cannot herself demand a partition but if a partition does take place between her husband and his sons, she is entitled to receive a share equal to that of a son and to hold and enjoy the share separately even from her husband.