LACHHMINI DEVI Vs. RAJ KUMAR PRASAD

JUDGEMENT

(1.) THE plaintiffs have filed this Second Appeal against the judgment and decree dated 30.09.2003 passed by the learned 3rd Additional District Judge, Nawadah in Title Appeal No.15 of 1989/4 of 2003 whereby the Lower Appellate Court allowed the appeal and thereby reversed the trial court judgment and decree dated 17.03.1989 passed by the Additional Munsif, Nawadah in Title Suit No.32 of 1976/18 of 1989 dismissing the plaintiff's suit.

(2.) THE plaintiffs-appellants filed the aforesaid suit for partition of the suit property to the extent of half share. The plaintiffs claimed the aforesaid relief of partition to the extent of half share alleging that Pran Mahto was the common ancestor of the parties who died leaving behind 3 sons namely Rajnath Mahto, Ramo Mahto and Govind Mahto. After the death of Pran Mahto, three sons came in possession of the suit property. Rajnath Mahto and his wife died issueless, therefore, Ramo Mahto and Govind Mahto came in possession jointly over the entire suit property by the rule of survivorship. Both the brothers separated in mess and dwelling house and partitioned their movable properties half and half but remained in joint possession in immovable properties described in Schedule A of the plaint. Ramo Mahto died in the year 1939 leaving behind his widow, Deoki Kunwar, plaintiff no.1 and daughter, Lacchmini Devi, plaintiff no.2 and her son, plaintiff no.3. After death of Ramo Mahto, the plaintiffs came in possession of the immovable suit properties. Govind Mahto died in the year 1974 leaving behind his two sons namely Raj Kumar Prasad and Nand Kishore Prasad who came in joint possession of the properties. After the death of Govind Mahto, differences arose in the family regarding cultivation of the suit land. Hence, the suit was filed by the plaintiffs.

(3.) THE learned senior counsel, Mr. S.S. Dvivedi appearing on behalf of the appellant submitted that the right to maintenance of a widow is pre-existing right which was only recognized by the Act of 1937 or 1946. The said limited right to maintenance has been enlarged by Section 14(1) of the Hindu Succession Act, 1956 and the widow became the absolute owner of the property possessed by her. According to the learned counsel, on the death of Ramo Mahto in the year 1935, the plaintiff no.1 came in joint possession of the suit property in recognition of her right to be maintained and it is settled principles of law that the possession of a co-sharer is possession of all co-sharers. In such circumstances, even if the widow was not in de facto possession of the property, she will be deemed to be in possession of the property because of the said principle that possession of co-sharer will be for the benefit of the possession of other co-sharers. According to the learned counsel, this right of the widow became absolute with regard to the property possessed by the widow in view of Section 14(1) of the 1956 Act. Both the courts below have misconstrued the provisions of Section 14(1) of the 1956 Act. The word "possessed of" will not mean only the physical possession of the widow. The widow may be in possession through either her co-sharer or through any other person because the widow being the lady is not expected to keep her feet on the land itself.