GOURHARI MANDAL (DEAD) SUBSTITUTED BY HIS HEIRS KAMLA KANT MANDAL & OTHERS Vs. CHIMANTA BALA DASI & OTHERS

JUDGEMENT

(1.) The defendant is the appellant in the appeal arising out of a suit for partition where the plaintiff -respondent has prayed for partition of her 1/5th share in the suit property. Shortly stated the case as put forward by the plaintiff, was that the suit property originally belonged to one Mathan Mandal who died leaving behind a son Gourhari Mandal (defendant No. 1), the plaintiff (widow of the

(2.) Defendant No. 2 one of the daughters of Mathan Mandal filed a written statement supporting the case of the plaintiff in toto. The suit, however, was contested by defendant No. 1 Gourhari Mandal son of Mathan Mandal. He did not dispute the genealogy. His case was that the parties were governed by the Mitakshara law as applicable to the Hindus in Bihar. It was said that the parties were residing in the District of Santhal Parganas and when Mathan Mandal died in jointness with Gourhari Manual (defendant No. 1) the two had 1/2 share each. Further it was said that on the death of Mathan Mandal his widow came in possession of the share of her husband but when she died then 1/2 share was inherited by the plaintiff and the four defendants in equal proportion. Thus, according to this defendant, the share of the plaintiff was only to the extent of 1/10th.

(3.) The two courts below accepted the case of the plaintiff and held that the parties were governed by Dayabhag School of Hindu Law. According to them, therefore, the plaintiff had 1/5th share and the suit was decreed as prayed for.