INSANE NIL GOVINDA MISRA, REPRESENTED BY GUARDIAN WIFE KHANTA MAYI DEBY AND AFTER HIS DEATH HIS SOLE HEIRESS AND LEGAL REPRESENTATIVE KANTA MAYI DEBY Vs. SMRUKMINI DEBY W/O RADHA GOBINDA MISRA

JUDGEMENT

(1.) Bama Charan Misra, the common ancestor of the parties to this litigation died leaving five sons, Rarn Gobinda, Radha Gobinda, Broja Govinda, Nil Govinda and Dole Gobinda. The family is admittedly governed by the Mitakshara school of Hindu law. Those five sons lived as members of a joint family. Dole Gobinda had no male issue. He died in September 1928 leaving a widow. Dole Gobinda's interest in the joint ancestral properties accordingly passed by survivorship to his four brothers. At the date of the in stitution of the suit of the sons of Bama Charan only Nil Gobinda was alive. He was, however, then a lunatic, having become insane at a comparatively early age. He died after the decree of the lower Court leaving a daughter and daughter's sons and his sonless widow, Khanta Mayi. Khanta Mayi has been substituted in his place. She is one of the respondents in First Appeal No. 140 and the sole appellant in First Appeal No. 152.

(2.) Radha Gobinda died without leaving direct male descendants on 5 June 1937 after the Hindu Women's Rights to Property Act (18 of 1937) bad come into operation. The plain, tiff, Srimati Rukmini Debi, is his widow. On 25 February 1939 she instituted this suit for partition. The defendants to the suit were Nil Gobinda, the surviving son of Bama Cha-ran and the male descendants in the direct line-sons and grandsons of the other three sons of Bama Charan. The plaint proceeded upon the basis that the plaintiff's husband was at the time of his death a member of a joint Mitakshara family of which the defendants were the other coparceners. In the plaint she stated that the properties described in Schedules Ka and Kha attached to the plaint were the joint ancestral properties of the sons of Bama Charan and those described in Schedule Ga were their joint self-acquired properties. She claimed one- fourth share in all of them on the basis of Section 8 (2), Hindu Women's Rights to Property Act of 1987 (hereinafter called the Act) and prayed for partition by metes and bounds. The learned Subordinate Judge considered the questions raised by the defendants. He overruled them and declared the plaintiff's share in all the properties to be one-fourth. He passed a preliminary decree for partition on 30 April 1940. He directed the Commissioner of partition to make two allotments one to be allotted to the plaintiff for her one-fourth share and the other to be allotted to all the defendants jointly as representing their three-fourth share. Before him the guardian ad litem of defendant 5 (Nil Gobinda) prayed for a separate allotment but the learned Subordinate Judge refused that prayer. Defendants 1 and 2 (the sons of Ram Gobinda), defendants 3 and 4 (the sons of Broja Gobinda) and defendant 6, a son of de fendant 3 have preferred First Appeal No. 140. First Appeal no. 152 was filed on behalf of defendant 5.

(3.) None of the parties before us question the findings of the learned Subordinate Judge that the family continued to be joint at the date of the institution of the suit and that Nil Gobinda had a share in all the properties in suit. At the time when the learned Subordinate Judge pronounced his judgment the precise scope of the Hindu Women's Rights to Property Act of 1937 had not been determined. Since then the Federal Court has held in 1. In the matter of Hindu Women's Rights to Property Act, , that that Act has no operation on "agricultural land" with the result that devolution of such lands would not be governed by the provisions of that Act but by the provisions of Hindu law.