MAHABIR MAHTON Vs. SONMATI KUER

JUDGEMENT

(1.) The suit which has given rise to this appeal by the defendants was for partition of immoveable properties described in detail in Schedules 1 and 2 of the plaint and for allotment of a separate takhta of -/8/- annas share therein to the plaintiff. Both the Courts below have decreed the suit. The parties thereto are admittedly members of a common family. Their common ancestor was one Sukan Mahton, who had two wives. By the first wife, he had a son, Loki Mahton, and Loki Mahton in his turn had a son, Ram Keshwar Mahton. By the second wife, Sukan Mahton had three sons, Girwar Mahton, Bundel Mahton and Mahabir Mahton. Bundel predeceased his father. Girwar died leaving a son, Kashi Mahton. Kashi Mahton is also now dead with out any issue. The plaintiff, Sonamati Kuer, is the widow of this Kashi Mahton. The third son, Mahabir Mahton, is defendant No. 1, and his sons and grandson have been impleaded as defendants 2 to 5.

(2.) In this Court the case has been argued oh; the admitted footing that on the date Kashi Mahton died, the heirs of Sukan Mahton by his second wife were inter se joint as contemplated, by the Mitakshara School of Hindu Law. The claim of the plaintiff, however, was that Kashi Mahton died in the year 1939, that is to say, after the passing of the Hindu Women's Rights to Property Act, 1937. Therefore, it was claimed that she was entitled to one-half of the properties owned and possessed by the heirs of Sukan Mahton by his second wife, or one-fourth of what Sukan Mahton had left on his death. Further, it appears that the properties of which partition was sought were of two classes; (i) the ancestral property which has been detailed in the plaint in Schedule 1, and (ii) the acquired properties standing either in the name of defendant No. 1 or in the name of his wife or that of the wife of his son, which have been detailed in Schedule 2 of the plaint. According to the plaintiff, these acquisitions as well were made out of the common family fund, and, therefore, she was entitled to her share therein as well.

(3.) In answer thereto, the plea in defence was two fold; (i) that Kashi Mahton died sometime in 1933, that means, before the passing of the Hindu Women's Rights to Property Act, 1937, and, therefore, his widow, who as already stated is the plaintiff in the present case, could not inherit, any of his properties on his death, the family then being joint, and (ii) that the acquisitions on the properties mentioned in Schedule 2 of the plaint were the personal acquisitions of the purchasers out of their personal funds, and, therefore, the plaintiff was in any case not entitled to any share in those properties.