BIKAL CHANDRA GOPE Vs. MANJURA GOWALIN

JUDGEMENT

(1.) The appellants before this Court are defendants Nos. 2 and 3 to a suit for partition. The plaintiff-respondent claimed one-third share in the lands situate in village Nagatumang, P. S. Rajnagar, district Singhbhum, appertaining to old Khata No. 23, and now Khata No. 33, fully described in Schedule A to the plaintiff.

(2.) The case of the plaintiff-respondent was that Rajendra, Mahendra and Madhu were three brothers and they held the suit lands, jointly as their raiyati lands. On the death of Rajendra, his share devolved upon his two sons, the appellants. On the death of Mahendra, his one-third share came in possession of his widow Ghasu Gowalin, mother of the Plaintiff-respondent. Ghasu Gowalin died about six years after the death of her husband, leaving the plaintiff-respondent as her only heir. Since then, the plaintiff-respondent has been coming in possession of the one-third share of her father Mahendra. The third brother Madhu (original defendant No. 1) died during the pendency of the suit and his heirs have been substituted as defendants Nos. 1 (a) to 1 (d). The suit was mainly contested by defendants Nos. 2 and 3, appellants before this Court. According to them, in the matter of inheritance and succession, the parties were governed by the Mitakshara School of Hindu Law and not by the Dayabhaga School of Hindu Law as was the case of the plaintiff-respondent. According to the contesting defendants, Mahendra died more than forty years ago and, on his death, his interest devolved upon the other coparceners by survivorship and the share held by him came into the possession of his brothers. Rajendra and Madhu. Ghasu Gowalin did not get any share in the property left by her husband Mahendra, nor did she claim any possession over any portion of the suit lands. Some other pleas were also raised but they are not material for the purposes of this appeal.

(3.) The learned Subordinate Judge, who tried the suit, came to the conclusion that the parties were governed by the Dayabhag School; that there was unity of title and possession between the parties and that there had been no previous partition in so far as the suit lands were concerned. Having come to these conclusions, he decreed the suit for partition to the extent of one-third share in favour of the plaintiff.