RAJ KISHOR MAHTO Vs. ROHNI DEVI

JUDGEMENT

(1.) THIS First Appeal arises out of a partition suit No. 19 of 1974. The defendants who are the appellants have filed this appeal against the judgment dated 30th june, 1977 passed by the subordinate judge, Biharsariff at Nalanda.

(2.) THE plaintiff-respondent filed a partition suit claiming share of her deceased husband Chhotu Mahto. The plaintiffs case is that Ram Dayal Mahto was the common ancestor who had a son Naurangi Mahto who was recorded in the survey records of rights as raiyat of the schedule 1 lands mentioned in the plaint. Naurangi Mahto died leaving behind five sons Dular Mahto, Sita Mahto, siri Mahto, Tori Mahto and Chhotu Mahto. Dular Mahto died in the state of jointness leaving behind his son Gopi Mahto who also died in 1953 in the state of jointness leaving behind one son and a widow, who are defendants No. 3 and 4 in this case. Sita mahto died issueless in the state of jointness more than 25 years ago. His share of the properties came in possession of the other surviving coparcener by survivorship. Tori mahto who is defendant No. 2 also had no successor as he remained unmarried. Chhotu Mahto died leaving behind his widow keoli Devi (plaintiff) in the year 1945. It is the case of the plaintiff that she became a widow in the state of jointness with the members of the joint family therefore, she is entitled to the share of her husband Chhotu mahto under the Hindu Women's Right to property Act, 1937 and she becomes an absolute owner of the properties under the hindu Succession Act of 1956. In order to establish her claim of partition, the plaintiff has pleaded that she was born in the year 1928 and was married to Chhotu Mahto in; the year 1943 and her 'roksati' was performed in the year 1944 and thereafter she lived with her husband at village Kutlupur. It is her specific case that Chhotu Mahto died one year after 'roksati' in the year 1945. The joint family looked after her till the time dular Mahto, who was the 'karta' of the joint family, was alive, but after his death she was neglected, and ultimately her brother bulakan Mahto took compassion of her and she began to live with him. The plaintiff demanded partition of 1/4 share of the joint family which was refused by the members of the family and ultimately she had to file this suit for partition.

(3.) TWO sets of written statements have been filed. One set of written statement has been filed by the defendants No. 2 to 4 and the other by defendants No. 1, 5 and 6. The defendants Dular Mahto, Sita Mahto, Siri mahto and Tori Mahto and their heirs do not have any conflict of interest as far as their respective cases are concerned. The defendants also admit the correctness of schedule 1 which is a list of the land belonging to the family except that they say that Khata No. 258 instead of 248 has been wrongly mentioned and Tauzi No. 10312 in the schedule of the plaint has also been wrongly mentioned instead of 10314 with respect to Khata No. 302. It is their case that it has been gifted to the family 'yajman' i. e. the Brahmin (priest) who was attached to the family and as such it is said that Khata no. 302 has wrongly been included in the schedule of the plaint. The plaintiff has accepted the mistakes made in the plaint in schedule 1 and has also accepted that Khata no. 302 has been gifted to the family Brahmin (priest ). The genealogical table is also accepted by the defendant.