KHATRANI KUER Vs. TAPESHWARI KUER

JUDGEMENT

(1.) This case has been placed before this Bench because there are conflicting decisions of this Court on some of the points of law involved in it of the case may be summarised as follows. I may first give short geneology.

(2.) This appeal by the defendant, Khatrani Kuer, arises out of a suit for partition. The facts of the case may be summarized as follows. I may first give short geneology. <FRM>JUDGEMENT_261_AIR(PAT)_1964Html1.htm</FRM> There was a partition between Sidhnath and his brothers in 1939 after the death of Bisheshwar, and they were separate from each other. We are not concerned with the properties allotted to Gauri and Jagannath because the controversy in this case relates only to the property held by the branch of Sidhnath. As I have indicated, Chandrapal died in a state of jointness with his father before 1953 but long after 1937, when the Hindu Women's 'Rights to Property Act, 1937 (hereinafter to be referred to as the Act) came into effect. His father, Sidhnath, died in 1953, and his mother, Jasmati, died in 1954. Thereafter Tapeshwari instituted the suit out of which this appeal arises, and framed it as a simple suit for partition. The defendant alleged that plaintiff Tapeshwari was not the daughter of Sidhnath but that of Gauri. She also alleged that Tapeshwari was not in possession, and hence a simple suit for partition did not lie.

(3.) The Subordinate Judge, who tried the suit, held that the plaintiff was not the daughter of Sidhnath, that she was not entitled to any part of the property held by his branch even if she was his daughter, and that she was not entitled to maintain a simple suit for partition as she was not in possession. On these findings, he dismissed the suit.