LEELA DEVI Vs. SURYA NARAYAN DAYAL

JUDGEMENT

(1.) I .P.A. 226 of 2000 is filed 'by the plaintiff in the Suit P. S. 222 of 1993 on the file of the Subordinate Judge, Ranchi. I.P.A. 233 of 2000 is filed by defendant No. 1 therein, the contesting defendant. The suit was one for partition. The suit was resisted by the contesting defendants namely, defendants 2 and 6. The trial Court upheld the claim of the plaintiff for partition and held that she was entitled to 10 out of 56 shares. The plea of ouster raised by the contesting defendants was negatived. Challenging the decree of the trial Court, defendant 2 and 6 filed the appeal, F.A. 174 of 1995. A learned Single Judge of this Court allowed the appeal in part and reduced the share to which the plaintiff was entitled. The learned Judge reduced the share to 1/28. Feeling aggrieved the plaintiff has filed the appeal questioning the reduction in share and defendant No. 1 has filed the appeal questioning the share awarded to the plaintiff.

(2.) ACCORDING to the plaintiff five items, namely, plaint items 1, 2, 3, 4 and 7 stood in the name of her paternal grandmother Kewala Kunari and on her death devolved on her son Ram Niranjan Dayal, the father of the plaintiff, two items, items 5 and 6 were the acquisitions of her father Ram Niranjan Dayal, Ram Niranjan Dayal died on 26.12.1958 leaving behind two widows, the mother of the plaintiff, Tetar Kunari and the mother of the defendants 1 to 5, Jirkalo Devi impleaded as defendant No. 6 in the suit. According to the plaintiff the father Ram Niranjay Dayal having died after the coming into force of the Hindu Succession Act, she was entitled to a half share in the suit properties. In their written statement, the contesting defendants took the plea that the properties were ancestral and that the share claimed by the plaintiff is not correct. They raised the plea that on the death of Ram Niranjan Dayal, his widows would take one share between them and on the death of Tetar Kunari, the mother of the plaintiff on 17 of 1987 her right in that share survived to the co -widow. Jirkalo Devi and so understood, the plaintiff was entitled only to a share in the share that may be found due to Ram Niranjan Dayal, the father, on a notional partition as having taken place a day prior to his death. It is not necessary to deal with the plea of ouster raised in defence since that plea was found against and it has not been pursued thereafter.

(3.) THE learned Single Judge in the appeal by the contesting defendants, adverted to Sections 6 and 8 of the Hindu Succession Act. but not to Sec.19 of that Act. The learned Judge held that on the death of Ram Niranjan Dayal, a notional partition would take place in which his two widows would get a share equal to that of their children and on the death of Tetar Kunari on 17.01.1987, her right in the share of the widows would survive to the other widow Jirkalo Devi, defendant No. 6, the mother of defendants 1 to 5, since the widows take the property in terms of Sec. 8 of the Hindu Succession Act as joint tenants. Thus, the learned Judge found that the plaintiff was entitled only to 1/28 share in the properties and she was not entitled to claim anything in the share that devolved in her mother. Thus, the preliminary decree was modified.