SATYABHAMA DEBI Vs. BHAGABAN MISRA AND ORS.

JUDGEMENT

(1.) ONE Jasoda filed a suit for partition against Defendants 1 to 3. She subsequently added Defendants 4 to 6, the transferees in respect of plot No. 9 in B schedule of the plaint, who had purchased the same from Defendants 1 to 3 on 2 -8 -1963. During the pendency of the suit Jasoda died. Her daughter Satyabhama (Petitioner) was substituted in her place. Preliminary decree was passed in her favour decreeing partition as well as relief under Section 4 of the Partition Act "against Defendants 4 to 6. That decree has become final. The Petitioner's relief against Defendants 4 to 6 under Section 4 of the Partition Act can no longer be questioned. In the final decree proceeding the Petitioner filed an application that Defendants 11 and 12 were joint purchasers of plot No. 9 in schedule B with Defendants 4 to 6 and that she should be granted relief under Section 4 of the Partition Act. This prayer has been rejected by the learned Subordinate Judge. The civil revision has been filed against the impugned order dated 6 -12 -1973.

(2.) TWO questions have been canvassed:

(3.) THERE is, however, a more formidable reason why the Petitioner is entitled to relief under Section 4 of the Partition Act in respect of the alienation made by Defendants 1 to 3 in favour of Defendants 11 and 12. On the filing of the suit for partition there was disruption of the joint status in the family of Jasoda. On the death of Jasoda, her daughter (Petitioner) stepped into her shoes and would be entitled to the same relief to which Jasoda was entitled at the time of the institution of the suit. Once the cause of action accrued, the same cannot be destroyed merely by the accident of death of the Plaintiff filing the suit. On such analysis even if the Petitioner was not entitled to the relief under Section 4 of the Partition Act by being treated as a member of the undivided family qua the dwelling house, she would be entitled to relief as having stepped into the shoes of Jasoda. The learned Subordinate Judge therefore exercised jurisdiction illegally in refusing relief under Section 4 of the Partition Act.