SURAJ BANSHI KUNWAR Vs. SHIV PATI KUNWAR

JUDGEMENT

(1.) The instant Letters Patent Appeals has been preferred against the judgment and decree dated 27.07.1999 passed in First Appeal No. 142 of 1974.

(2.) The short fact as enumerated is that the plaintiff filed Partition Suit No. 1 of 1964 against the defendants/appellants, which was dismissed for default on 30.01.1969 before the court of Sub-ordinate Judge, Palamau at Daltonganj. It was stated that Sheonandan Pandey died in the year 1948 leaving behind his widow, Kismati Kuer and two grandsons of his pre-deceased son namely, Bhuneshwar Pandey and Dukhbanjan Pandey and his daughter-in-law Rajmati Kuer, widow of his pre-deceased son Ayodhya Pandey. Widow Rajmati Kuer died in the year 1985 during pendency of the suit but Sheonandan pandey, his son and grandsons which were constituting joint family before the death of Ayodhya Pandey claimed to have half share while Ayodhya Pandey would have got 1/6th share. The further case is that 1/6th share of Ayodhya Pandey devolved upon the plaintiff under Section 3(2) of the Hindu Womens Right to Property Act as the plaintiff became absolute owner after the Hindu Succession Act. Sheonandan Pandey died in the year 1948 and his half share devolved upon his widow Kismati Kuer. Bhuneshwar Pandey son of Sheonandan Pandey died in the year 1951 leaving behind two widows Saraswati Kuer and Surajbanshi Kuer and one daughter Sharda Devi. After death of Kismati Kuer in 1957 her share devolved on Dukhbhanjan Pandey. Thus, the share of defendant No.1 in the property in suit came to half plus 1/6th share i.e. 2/3rd share. Further, on the death of Saraswati Kuer in the year 1961, her interest to the extent of 1/12th share devolved upon her daughter Sharda Devi. The plaintiff thus claimed 1/6th share in the suit property stating that the family was still joint.

(3.) The suit was contested by defendant Nos. 2 and 3 i.e. widow and daughter of Bhuneshwar Pandey respectively. The case of the defendant is that plaintiff had no locus standi to institute the suit and as such, the same was not maintainable. The year of death of Ayodhya Pandey was wrongly mentioned as he died in the year 1936 and not in the year 1938 therefore, plaintiff did not derive any advantage either under Hindu Womens Right to Property Act, 1937 or under the provisions of Hindu Succession Act, 1956. Further claim was made that Sheonandan Pandey had ancestral property in his hand and he formed a joint Hindu family of his sons and grandsons. Ayodhya Pandey died in the year 1936 in state of jointness leaving behind his two sons Bhuneshwar Pandey and Dukhbhanjan Pandey being defendant Nos. 1 and 2. Since Ayodhya pandey died in the year 1936, his widow, the plaintiff did not inherit any share and after the death of Ayodhya Pandey the joint family consisted of Sheonandan Pandey, Bhneshwar Pandey and Dukhbhanjan Pandey who held 16 Annas interest as the family governed by Mitakshra School of Law. The claim of the plaintiff about 1/6th share of the property were denied as Sheonandan Pandey died in the year 1948 and after his death his half share and interest in the joint family property devolved on his widow Kismati Kuer and she remained in possession of half share even in the joint family property. She never claimed any partition and the joint interest were never separated. After her death in 1957, her half interest in the family property passed on to the defendants. Therefore, it was denied that the plaintiff has got any share much less 1/6th share and on these grounds suit was liable to be dismissed. Defendant No.1 who was the plaintiff's son, had supported her.