INDU DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE present appeal was preferred in the year 1995. The brother of the appellant, namely, the sole private -respondent died in the year 1996. After a long delay, a defective application was filed for recording the death of the sole private -respondent and for bringing on record his heirs and legal representatives. Subsequent thereto an application was filed seeking setting aside of abatement as well as condonation of delay.

(2.) ALTHOUGH the reasons given for the dealy in filing the application for setting aside of abatement and substitution are not convincing, but having regard to the fact that family disputes must be resolved finally, we condone the delay in filing the application for setting aside abatement and for substitution and accordingly record the death of the sole private -respondent and bring on record his heirs and legal representatives as particularised in the application.

(3.) BE that as it may, in accordance with the law as was prevalent prior to coming into force of the Hindu Succession Act, on a partition between the brothers, they were entitled to equal share. There was an ancient Hindu conception of Jyeshtabhagam, in terms whereof elder brother was entitled to a larger share. As would be evident from Mulla on Hindu Law, 15th Edition, paragraph - 321, the said concept became obsolete long long time back and Courts never considered, nor enforced any claim by the eldest member or manager to a larger share of the joint family property than allotted to other coparceners. It has been held in many judgments including in the judgment rendered by the High Court at Mysore in the case of Veerabhadrappa vs. Lingappa, reported in AIR 1963 Mysore 5, that no Court shall confirm any unequal allotment in any case on the ground that the arrangement had been acted upon. Therefore, the elder brother getting a larger share in the joint family property is not permissible.