RAJ KUMAR CHOUBEY Vs. DULHIN JANKI DEVI

JUDGEMENT

(1.) HEARD Mr. Kamal Nayan Choubey, learned Senior counsel for the defendant - petitioners and Mr. V. Nath, learned counsel for the plaintiff -opposite parties.

(2.) IN this application the petitioner has assailed the impugned order, whereby and whereunder the prayer of the defendant -petitioners for abatement of the suit under Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act (hereinafter referred to as the 'Act ') has been rejected on the ground that the relief of declaration that the plaintiffs are the daughter of late Khedaru Choubey and Phoolkuery cannot be gone into by the consolidation authorities and consequently would not lead to abatement of the suit. Counsel for the petitioners has submitted that the suit filed by the plaintiff -opposite parties was out and out a suit for partition in which the question as to whether the plaintifs are the daughter of Khedaru Choubey or not was a merely an incidental issue. He would, therefore, submit that when the main relief in the suit was for partition, the view taken by the court below of rejecting the prayer of the defendant -petitioner for abatement would be in the teeth of the statutory requirement under Section 4(c) of the Act. He has placed his reliance on the judgment of this Court in the case of Bijali Thakur & Ors. V/s. Rameshwar Thakur & Ors., reported in 1977 BBCJ 701 [: 1977 PLJR 410], in the case of Chaturbhuj Prasad Singh V/s. Satya Prasad Singh & Ors., reported in AIR 1985 Pat. 255 [:1985 PLJR (NOC) 49] and in the case of Bettiah Estate V/s. Pushpa Devi & Ors., reported in 1986. PLJR 222, to contend that even in a composite suit the doctrine of severability should be applied as there could be always be partial abatement of a suit. He had who would summed up his submissions that even if the part of the relief of declaration of relationship of the plaintiffs being daughter of Khedaru Choubey could still be gone into by the civil court, the relief of partition being severable suit to that extent at least would definitely abate.

(3.) MR . V. Nath, learned counsel appearing on behalf of the opposite parties, however, has explained the whole aspect in a different manner. He would contend that a suit for partition in normal circumstances would definitely abate but when on showing of the defendant -petitioners, they themselves were responsible in getting the suit converted for one seeking also a declaration of relationship of the plaintiffs being daughters of Khedaru Choubey in view of a specific stand in the written statement questioning not only the relationship plaintiff with Khedaru Choubey but also even the date of death so as to affect the right of their inheritance, had no longer left it to be suit for partition inasmuch as the result of the suit was to be governed on the main relief as to whether the plaintiffs were daughter of Khedaru Choubey or not? Elaborating his submissions from yet another angle Mr. Nath has further submitted that dispute of the date of death of Khedaru Choubey as raised by the defendant -petitioners had not only expanded the horizon of the suit for determining the relationship having of the plaintiff with Khedaru Choubey but the very right of the plaintiffs to inherit and acquire the property of Khedaru Choubey. It has been in this context explained by him that plaintiffs had originally contended in the plaint that the date of death their father Khedaru Choubey was in 1950 but the same was also sought to be denied by the defendant -petitioners by shifting it back to 1937, so as to eliminate the applicability of the provisions of right to succession under Hindu Succession Act, 1956 and confining as also restricting the plaintiffs to the limited Rights of a Woman under the rigours of limited interest under Hindu Women 'sRight to Property Act, 1937, which would altogether exclude the possibility of claiming share by the married daughters in the estate of their father dying in 1937. He has thus concluded that the suit in question primarily involves the issue of right of succession and inheritance and as such suit would not abate in the light of the ratio of the judgment of the Apex Court in the case of Ram Sakal Singh V/s. Most Monako Devi & Ors., reported in 1997(2) PLJR (S. C.)63.