HARIKANT SINGH Vs. RAM KRISHNA SHARMA

JUDGEMENT

(1.) The appellants in this appeal seeks to rely upon an observation made by a Division Bench of this Court, which was comprised by one of us (Barin Ghosh, J.), in the case of Ambika Rai v. State of Bihar & Ors., 2007 (1) PLJR 536 to the effect that "the right of maintenance of a Hindu widow was not a pre-existing right". We think that this observation is per incurium in view of the three judges Bench decision rendered by the Hon'ble Supreme Court in the case of V. Tulasamma v. Sesha Reddy, reported in AIR 1977 SC 1944, followed by a Division Bench of the Hon'ble Supreme Court in the case of.Raghubar Singh v. Gulab Singh reported in AIR 1998 SC 2401.

(2.) In the instant case the respondent No. 1 instituted a suit against the appellants for recovery of possession of the suit land. It was alleged in the plaint that the respondent No. 1 purchased the said property from a lady who inherited the same from her mother Mangli. It was stated that in lieu of maintenance half of the suit property was given to the mother of the vendor of the respondent No. 1 for her life under an instrument and by reason of Section 14 (1) of the Hindu Succession Act, 1956 the limited right the mother of the vendor of the respondent No. 1 had in half of the suit property matured into full right. It was stated that the remaining half of the property was mortgaged in favour of the father of the vendor of respondent No. 1. It was alleged that after the property was purchased under a registered instrument by the respondent No. 1 from his vendor, the respondent No. 1 got possession of the suit property and thereupon he was wrongly evicted therefrom by the appellants.

(3.) This suit was decreed ex parte. The appellants tried to have the ex parte decree set aside by taking recourse to Order IX Rule 13 of the Code of Civil Procedure, but did not succeed. The appeal filed against the order rejecting the prayer for setting aside the ex parte decree having been dismissed no further step was taken by the appellants and, accordingly, the ex parte decree so passed reached finality.