KUILI MAJHIANI Vs. SALIA MAJHI

JUDGEMENT

(1.) The unsuccessful plaintiff has filed this appeal challenging the judgment and decree passed by the learned Sub-ordinate Judge, Mayurbhanj (as it was then) in T.S. No. 33 of 1988, by dismissing the same against the respondents-defendants with cost.

(2.) For the sake of convenience, for clarity and to avoid confusion, the parties hereinafter have been referred to as they have been arrayed in the court below.

(3.) The case of the Plaintiff is that the parties being Hindus are governed by Mitakhara School of Hindu Law. They being "Santal" by caste belong to the Scheduled Tribe and as such the provisions of Hindu Succession Act, 1956 are not application to them. Common ancestor Fudan Majhi died in a state of jointness both in mess and estate leaving behind six sons namely Madan, Salie, Suna Pitha, Biru and Jura. These six sons continued to remain in joint mess and estate after the death of Fudan. Out of them Salie is living and is defendant no.1. Other sons died one after another leaving behind their legal heirs. Defendant nos.2 and 3 are the sons of Madan. He had two daughters namely Chanamani and Menaka. Defendant no.4 is the son of Pitha who had died also leaving behind the daughter namely, Thimiki and widow who died thirteen years prior to the suit. Biru died fourteen years prior to the suit leaving behind two daughters namely Rani and Sitamani. Since he had no son his interest in the ancestral property devolved upon other branches of family by way of survivorship. Jura died leaving his widow who is defendant no. 5. Suna died thirty two years prior to the suit leaving behind his widow, the plaintiff and four daughters namely Mira, Mani, Sakra and Fulamani. It has further been pleaded that the plaintiff inherited her husband's interest in the suit properties by virtue of Hindu Women's Right to property Act, 1937 which came into operation in 1950 by virtue of Merger Laws Act, 1950 (SIC). Thus the plaintiff filed a suit for partition of the property described in Schedule B and C of the plaint in metes and bounds, praying for allotment of ? ...?th share unto herself stating entitlement of ? ...?th share for defendant no.2 and 3 jointly; ? ...?th share for defendant no. 1; ? ...?th share for defendant no. 4 and ? ...?th share for defendant no. 5. It is stated that the parties are possessing separate parcels of land and accordingly separate note of possession with respect of those lands has been made in favour of different branches in the settlement record. The plaintiff after having approached the defendant on several occasions for the purpose of partition of the suit land in metes and bounds when failed as the defendants turned deaf ear to it, the suit has come to be filed.