HEMALATA DEIL Vs. UMASANKARI MOHARANA

JUDGEMENT

(1.) THE disputed properties belonged to one Hadibandhu Moharana who died in 1943 leaving behind Chanda, Dinabandhu and Hemalata who were respectively his widow, son and daughter. Chanda filed a suit for partition in forma pauperis against Dinabandhu and Hemalata. While the pauper application was pending. Dinabandhu died on 2-4-1964. His widow Umasankari (defendant No. 1-ka) and his two daughters Jyoshnarani (defendant No. 1-kha) and Sandhyarani (defendant No. 1-ga) and his son Satchidananda (defendant No. 1-gha) were impleaded as parties in his place. On 4-8-1964 Chanda died. Hemalata was transposed as the plaintiff, paid court-fees on the plaint and the application was numbered as T. S. No. 96 of 1965. On 2-3-1965 Hemalata amended the plaint to bring it in consonance with her claim. It is to be noted that in the original claim Chanda would have been entitled to half interest while Hemalata would have been entitled to 3/10th interest in the total property. On 30-10-1965 the trial Court gave a direction to the plaintiff to file a consolidated plaint incorporating the amendment. Such a plaint was filed on 9-12-1965. THE plaintiff averred that in the ancestral house the defendants were residing while the other house was let out to tenants. This averment was not disputed in the written statement and the only plea taken was that Hemalata cannot sue for partition under Section 23 of the Hindu Succession Act, 1956 (hereinafter to be referred to as the Act). THE trial Court decreed the suit, but gave a direction that the plaintiff would get 3/10ths interest out of the building which was not in occupation of the defendants. THE defendants filed First Appeal No. 108 of 1970. THE learned Single Judge dismissed the suit holding that the claim of Hemalata was not in consonance with the plaint filed by Chanda. He unfortunately overlooked that the plaint had been amended and a consolidated amended plaint had been filed incorporating the amendment. He did not advert to any discussion under Section 23 of the Act and dismissed the suit. THE plaintiff has filed this appeal.

(2.) MR. B. H. Mohanty for the plaintiff-appellant advanced two contentions :-