BADRI PRASAD Vs. KAILASHI KUNWAR

JUDGEMENT

(1.) An application for partition was made to the Revenue Court by Lalta Prasad and others. A proclamation was issued as required by Section 110 of the Land Revenue Act, and on the date fixed in the proclamation the appellant, Musammat Kailashi Kunwar, made an application praying that a four annas share, of which she was in possession and in respect of which her name was recorded, should be formed into a separate mahal. This application was opposed by the respondent, Badri Prasad, who contended that Musammat Kailashi Kunwar was not a co-sharer entitled to partition, but was merely in possession in lieu of maintenance. The court of first instance (the Assistant Collector) determined the question of Kailashi Kunwar s right to obtain partition and decided in her favour. On appeal from its decision, the learned District Judge found that Kailashi Kunwar s possession was not as a co-sharer, that is, as a Hindu widow who had succeeded to the separate estate of her husband, but that under a compromise she had been put in possession in lieu of her maintenance by her husband s brother, and in view of this finding the learned Judge held that Kailashi Kunwar was not entitled to claim partition.

(2.) In our opinion this view of the learned Judge is correct. Kailashi Kunwar, although recorded as a co-sharer, could not claim partition unless it could be proved that she was in fact a co-sharer. This is manifest, as the learned Judge points out, from the provisions of Sections 111 and 112 of the Act. As we have stated above the learned Judge has found that Kailashi Kunwar was in possession, not as a co-sharer but in lieu of her maintenance. This being so, she was not a co- sharer and was not therefore entitled to claim partition. This was held in Bhoop Singh v. Phool Kower (1807) N.W.P., H.C. Rep., 868 and the same view was affirmed in Jhunna Kuar v. Chain Singh (1881) I.L.R., 3All., 400.

(3.) It is next contended that the respondent s objection was time-barred. This contention is also incorrect. The application of Kailashi Kunwar was under Clause (2) of Section 110, and, as it was filed on the date fixed in the proclamation and not before the date fixed, it must be deemed to be a first application for partition, and as apparently no fresh proclamation was issued the respondent could come in with his objection and the court was entitled to adjudicate upon it. On this point we may refer to the case of Khasay v. Jugla (1906) I.L.R. 28 All., 482.