JANKI MAHTO Vs. ARCHANA KUMARI

JUDGEMENT

(1.) This review petition has been preferred against the judgment dated 31.03.2011 passed by a Co-ordinate Bench of this Court in F.A. No. 263 of 2007 by which and whereunder he dismissed the above stated F.A. No. 263 of 2007 confirming the judgment and decree passed by learned Sub Judge-I, Biharsharif, Nalanda in Title Suit No. 163 of 2004.

(2.) Briefly stated the fact of the case is that the opposite parties filed Title Suit No. 163 of 2004 against the petitioners (except petitioner no. 2, namely, Suryadeo Prasad @ Suryadeo Verma) claiming 1/4th share in the suit property mentioned in Schedule-I and II of the plaint. They claimed that opposite party no. 1, namely, Archana Kumari @ Pali Devi is legally wedded wife whereas opposite party no. 2, namely, Nishu Kumari is minor daughter of petitioner no. 2, namely, Suryadeo Prasad @ Suryadeo Verma. They further claimed that they are members of joint Hindu family governed by Mitakshra School of Hindu Law along with petitioners. Furthermore, they claimed that above stated petitioner no. 2, namely, Suryadeo Prasad @ Suryadeo Verma went to Bombay in December 1996 for earning and since then he is traceless. Since more than seven years have already been passed and, therefore, the civil death of petitioner no. 2, namely, Suryadeo Prasad @ Suryadeo Verma be presumed and the suit property as mentioned in Schedule-1 and II of the plaint be partitioned. The petitioners (except petitioner no. 2, namely, Suryadeo Prasad @ Suryadeo Verma) appeared and contested the aforesaid suit taking various grounds. The learned Sub Judge after framing necessary issues decreed the above stated suit coming to conclusion that defendants of the aforesaid suit could not succeed to prove that petitioner no. 2, namely, Suryadeo Prasad @ Suryadeo Verma is alive and accordingly, a decree for partition was passed vide judgment and decree dated 28.09.2007 which was challenged by the petitioners (except petitioner no. 2) by filing F.A. No. 263 of 2007 which was, too, dismissed by a co-ordinate Bench of this court vide judgment dated 31.03.2011 against which this review petition has been preferred by the petitioners.

(3.) Learned counsel appearing for the petitioners submits that petitioner no. 2, namely, Suryadeo Prasad @ Suryadeo Verma is alive but at the time of passing judgment and decree dated 28.09.2007, his whereabouts could not be ascertained. However, subsequently, petitioner no. 2, namely, Suryadeo Prasad @ Suryadeo Verma came to his parental home and then it came to light that petitioner no. 2 is alive. He submitted that petitioners (except petitioner no. 2) could not succeed to bring to the notice of the court that petitioner no. 2 is alive even they had taken sincere efforts to trace the whereabouts of petitioner no. 2 as a result whereof, the learned Sub Judge presumed the civil death of petitioner no. 2 under Section 108 of the Evidence Act and after presuming his civil death, a decree of partition was passed in favour of opposite parties. He submitted that admittedly, the opposite parties claimed partition of joint family property being wife and daughter of petitioner no. 2 and it is also an admitted position that they had no right to file partition suit for partition of joint family property in the lifetime of petitioner no. 2 and now, it has been discovered that petitioner no. 2 is alive and, therefore, the judgment and decree passed in Title Suit No. 163 of 2004 as well as judgment dated 31.03.2011 passed in F.A. No. 263 of 2007 is not in accordance with law and there is apparent error on the face of the record. Learned counsel of the petitioners referred the decision of R. Gopala Pathar vs. N. Jayalakshmi Ammal and others, 1984 AIR(Mad) 340 and submitted that in the aforesaid case, the Hon'ble Madras High Court has clearly held that "wife is not entitled to inherit the joint family property in the lifetime of her husband." The perusal of case of R. Gopala Pathar (Supra) goes to show that the aforesaid cited case is not applicable in the facts of the present case because in that case, the Hon'ble Madras High Court held that under Section 108 of the Evidence Act, there is only presumption of death and there is no presumption of actual date of death under Section 108 of the Evidence Act.