JANKI MAHTO Vs. ARCHANA KUMARI

JUDGEMENT

(1.) The Defendants have filed this First Appeal against the judgment and Decree dated 28.09.2007 passed by Sri O.S. Srivastava, the learned Sub Judge I, Biharsharif, Nalanda in Title Suit No. 163 of 2004 decreeing the Plaintiff-Respondent's suit for partition.

(2.) The Plaintiffs-Respondents filed the aforesaid suit claiming 1/4th share in the suit property mentioned in Schedule I & II of the plaint. The Plaintiffs claimed the aforesaid relief alleging that the Plaintiffs and Defendants are members of joint Hindu family governed by Mitakshra School of Hindu Law. Plaintiff No. 1 Archana Kumari is legally wedded wife of Sooraj Deo Prasad, s/o Janki Mahto, the Defendant No. 1 and Plaintiff No. 2 is the minor daughter of Plaintiff No. 1. The Defendant No. 2 is wife of Defendant No. 1. Defendant No. 1 had two sons, namely, Arvind Prasad, the Defendant No. 3 and Sooraj Deo Prasad. Defendant No. 4 & 5 are sons of Defendant No. 3. The further case of the Plaintiff is that her husband went to Bombay in December, 1996 for earning and since then he is traceless. More than 7 years passed and, therefore, the husband is presumed to be dead. The Defendants-Appellants started ignoring her and her daughter and they stopped maintenance, therefore, she demanded partition of the joint family property which was refused. Hence the suit for partition was filed.

(3.) The Defendant No. 1 to 5 appeared and filed a contesting written statement. According to their defence, Sooraj Deo Prasad, the husband of Plaintiff No. 1 had returned on 02.06.2000 and stay for 15 days and again left for his service and, therefore, it is wrong to say that Sooraj Deo Prasad is traceless and died civil death. The further defence is that the Plaintiff's husband used to visit the village and, therefore, the suit is not maintainable and the Plaintiffs have no 1/4th share.