ASARFA KUER Vs. BHUNESHWAR RAI

JUDGEMENT

(1.) The appellant, Mt. Asarfa Kuer, widow of Sukhdeo Rai, was defendant No. 3 in the suit giving rise to this appeal. The suit was brought by Bhuneshwar Rai, son of Ramadhar Rai, respondent No. 2, claiming one-sixth share in the joint family properties and for carving out a separate takhta in respect thereof. The genealogy on which he relied is as follows: <FRM>JUDGEMENT_210_AIR(PAT)_1959Html1.htm</FRM> His case was that Halkhori Rai, Isar Rai and Parasuram Rai, the three sons of Pargas Rai, were separate from one another and one third share of each of the three branches had been clearly defined, but no partition by metes and bounds had been effected. His father, defendant No. 1, Ramadhar Rai, had kept a concubine from whom he had a son. He was evil minded and had turned dishonest. He was out to ruin the family properties and benefit his son, Rambachan Rai, from his concubine. This embittered the relations between him and his father Ramadhar Rai and, accordingly, he requested him (Ramadhar) to separate his share. He also asked the other defendants to effect partition, but they were indifferent to his request, so that he had to institute a suit for partition of his share. Mathura Rai, son of Gaya Rai and grandson of Parasuram Rai, supported his case. He was likewise supported in his claim by defendant No. 3 Asarfi Kuer (Asarfa Kuer). Defendant no. 1, father of the plaintiff, alone controverted the main allegations of the plaintiff. He pleaded that there was already a partition of the joint family properties amongst the three branches of the sons of Pargas Rai by which the properties mentioned in Schedule 'Ka' of his written statement were allotted to the share of Mathura Rai, defendant No. 2, and the remaining two thirds share was left joint. Halkhori Rai, the father-in-law of Asarfa Kuer, did not separate him. He continued to be in possession and occupation of the properties of his share as well as the share of Halkhori Rai. Defendant No. 3 Asharfa Kuer, had no right to the property of Halkhori. He stated further that the plaintiff was a misguided youngman under the influence of Mathura Rai, defendant No. 2, and was set up by him to harass him. He married a second wife after the death of the mother of the plaintiff and Rambachan Rai was born from her. After several years of that marriage, the plaintiff and his wife picked up quarrel with Rambachan's mother and accordingly he had to be separated. In 1943, the plaintiff also separated from his father, defendant No. 1, and his share was also carved out, which is mentioned in schedule 'Kha' to his written statement. Hence there was no unity of title and possession between the parties, and as such the suit was bound to be dismissed.

(2.) The learned Subordinate Judge, First Court, Arrah, heard the suit. He held that there has been no partition by metes and bounds of the joint family properties among the members of the family and to that extent the plea of Ramadhar Rai was disbelieved. He ordered that Mathura Rai, defendant No. 2, was entitled to his one-third share in the immovable properties, excepting the residential house. The plaintiff was held entitled to one-sixth share in respect of all the properties except a sum of Rs. 300/- covered by a headnote in favour of Ramadhar Rai. The learned Subordinate Judge, however, held further that the appellant, Mt. Asarfa Kuer, was not entitled to a share inasmuch as in spite of separation beween Ramadhar Rai and Gaya Devi, father of Mathura Rai, the branches of Halkhori Rai and Ramadhar Rai continued to be joint. Sukhdeo Rai, the husband of the appellant, died 15-20 years prior to the suit and Halkhori Rai, the father-in-law of Asarfa Kuer, died in 1945. Since Ramadhar Rai and Halkhori Rai continued to be joint in spite of the separation from Gaya Rai, Ramadhar Rai was entitled to the share of Halkhori Rai also by right of survivorship. Mt. Asarfa Kuer could, therefore, claim only maintenance and no share in the joint family properties. The learned Subordinate Judge, accordingly, passed a decree in favour of the plaintiff, Bhuneshwar Rai, as indicated above.

(3.) Plaintiff and defendant No. 2 being satisfied with the decree have not come up in appeal to this Court. Mt. Asarfa Kuer alone is aggrieved as she has been deprived of her right to claim the share of her husband and father-in-law, viz., Sukhdeo Rai and Halkhori Rai.