KHIRODHARI DEVI Vs. DHARMI DEVI

JUDGEMENT

(1.) THE appellant in this letters patent appeal was defendant no. 2 in the suit filed by respondent no.1, her sister, for partition of the suit properties. The aforesaid suit being Partition Suit No. 116 of 1970 was decreed by the Subordinate Judge, Hazaribagh, by his judgment and decree dated 21st April, 1975. The trial court held the plaintiff - respondent no. 1 entitled to 1/10th share in the suit properties while her four sisters, including two step sisters, were held entitled 1/10th share each. Defendant no.5 in the suit, who belonged to the branch of Girdhari Mahto, was found entitled to 1/2 share in the suit properties. Against the judgment and decree of the trial court only the appellant herein preferred a first appeal before this Court which was registered as Appeal From Original Decree No. 261 of 1975. The appeal was heard by a learned Judge of this Court who by his judgment dated 25th September, 1985, dismissed the appeal with costs throughout. Aggrieved by the said judgment and order this letters patent appeal has been preferred by defendant no. 2 -appellant.

(2.) WHEN this appeal came up for admission on 4.7.1986 counsel for the appellant did not challenge any other finding of the learned single Judge, but urged the only point that since Mostt. Jhalia, mother of the plaintiff and defendant nos. 1 and 2 only inherited the property as a limited owner which became absolute under the provisions of the Hindu Succession Act, only her three daughters namely, the plaintiff and defendant nos. 1 and 2 had interest in the suit property and defendant nos. 3 and 4 being her step daughters were not entitled to any share. The aforesaid defendant nos. 3 and 4 were the two daughters of the father of the plaintiff and defendant nos. 1 and 2 by his first wife, and were not the daughters of Mostt. Jhalia, the widow who was the second wife of the father of the plaintiff and defendant nos. 1 and 2. However, at the hearing of the appeal counsel for the appellant has reiterated all the submissions which were urged before the learned single Judge.

(3.) THE plaintiff -respondent no. 1 filed the partition suit stating that Lalo Mahto died leaving behind his two sons, Girdhari Mahto and Tejan Mahto. The two sons separated from each other and divided the suit properties approximately half and half, but there was no partition by metes and bounds. Girdhari Mahto died leaving behind his son Rameshwar Mahto (defendant no. 5). Tejan Mahto 's first wife died leaving behind two daughters, defendant nos. 3 and 4. Tejan Mahto remarried and by his second wife Mostt. Jhalia, he had three daughters, the plaintiff and defendant nos. 1 and 2. After the death of Tejan Mahto, Mostt. Jhalia cultivated the lands of the share of Tejan Mahto and distributed the produce of the lands amongst the five daughters of Tejan Mahto. However, she died four years ago leaving behind the plaintiff and defendants no. 1 to 4 in possession of the suit lands appertaining to the share of Tejan Mahto. Defendant nos. 1 and 2 began to look after the cultivation of the lands of Tejan Mahto, but they were not fair and just in distribution of the produce. Moreover, at the time of survey, defendant no. 5 and Bihari Mahto, husband of defendant no.2, got incorrect entries made in the new Khatiyan collusively, even though the defendants were in joint possession with the plaintiff. In these circumstances, the plaintiff claimed partition of her share in the suit lands by metes and bounds and since the defendants failed to do so, the plaintiff was left with no option but to file a suit for partition claiming her 1/10th share in the suit properties described in Schedule -A of the plaint.