SHANTI DEVI Vs. KUSUM DEVI

JUDGEMENT

(1.) THIS second appeal is directed against the judgment of affirmance passed in Title Appeal No. 13 of 1998/3 of 1999 by 4th Additional District Judge, Nalanda.

(2.) THE defendants are the appellants. THE plaintiffs filed suit for partition of the suit property described in Schedule I, II & IV of the plaint by carving out halt share by metes and bounds through the process of law/According lo the case of the plaintiffs, one Chaturbhuj Mahto had three sons, namely, Ganauri Mahto, Horil Mahto and Jugaf Mahto. Plaintiffs are the daughters of Juga Mahto from his second wife and defendant No. 1 is wife and defendant No. 2 is daughter of Binod Kumar born from the second wife of Jugai Mahto. Binod Kumardied on 13.4.1987. Further case of the plaintiffs is that due to bad relation of Lachhia Devi, second wife of jugal Mahto with the defendants she lived together with the plaintiffs and subsequently she died on 2.11.1992. It is stated that private partition between the plaintiffs and the defendants was made on 15.11.1992 but during the course of Chakbandi before the Circle Officer, Rahul, defendant No. 1 refused to agree to sign thereon and on application in Chakbandi the said partition had not been enforced, and, thus, the present suit was filed by them.

(3.) IN the present case, there cannot be any doubt that the parties had full opportunity to present their case on the point of partition sought by the plaintiffs-The "only dispute was as to whether the plaintiffs are the daughters from second wife of Jugal Mahto, namely, Lachhia Devi or that they were the daughters. of Faltu Mahto, who is father-in-law of Loki Mahto son of Hori Mahto, one of the brother of her father-in-law Jugal Mahto and due to family annoyance the plaintiffs, have been planted as daughters of Jugal Mahto by Loki Mahto. The plaintiffs have succeeded in proving that they are daughters of Jugal Mahto from his second wife, and it is not in dispute that defendant No. 1 is the wife of Binod Kumar .and defendant No, 2 is daughter of Binod Kumar son of Jugal Mahto from his second wife. It is also not in dispute that Lachhia Devi died on 2.11.1992. i.e. before filing of the suit. Thus, the only question remained to be considered was that under the provisions of Hindu Succession Act the plaintiffs are entitled for how much share which has been considered by the lower appellate Court while granting 2/3rd share instead of half claimed by the plaintiffs and with this modification in the judgment and decree of the trial Court the lower appellate Court has. dismissed the appeal filed by the defendant-appellants. According to Section 8 of the Hindu Succession Act, 1956 the property of a male Hindu dying intestate shall devolve firstly upon the heirs, being the relatives specified in Class I of the Schedule and the Schedule provides that son and daughter both are Class I heirs and, thus, entitled for equal share in the property of a person dying intestate.