0 s-^a^1 INTHE HI_GH COURT OF CHHATTISGARH AT BILASPUR .A. No..?^.b.^'../2004 APPEAL U/S. 100 OF CIV1L PROCEDURE CODE APPELLANT: {PLAINTIFF} (Resp. No. 1 in LAC) 3mt. Kanti Bai, W/o Bharat Lal age 23 years, R/o Village Chuhka, Tah. Bemetara Distt. Durg. (CG) RESPQNDJENTS pEFENDANTS) VERSUS 1. Taran Singh, S/o Budhu Singh Lodhi, aged about 35years. R/o Village Hadgaon, Tah. Berla, Distt. Durg (CG.) ; iomeshwar Singh, S/o Budhu Singh / ^ ° x^?"' ^ Lodhi, aged about 30 years, Op'/'^'' / Occupation farmer, R/o Village A^ ..-•' Hadgaon, Tah. Berla, Distt. Durg ••''^•"^- (CG.') "^.•'.A-'<? ,.-''<^'YS;" ,.-»/ /••" _^ ^•^"^ -,& <?•' ,<•'/.*' ^\/" > ^<-~ J" 0 //C Uttam Bai W/o Krishna Lodhi, aged 40 years, R/o Ghiwari, Tah. Saaja, Distt. Durg. (CG) ^D SatiBai, W/o Baldeo Lodhi, aged about 28 years, R/o Mohtara, Tah. Bemetara, Distt. Durg. ''E Indrani Bai W/o Yogesh Lodhi, aged about 25 years, R/o Souri, Tah. Saaja, Distt. Durg (CG) Smt. Geeta Bai aged about 38 years, W/o Budhu, R/o Village Hadgaon, e'v\ Tah. Berla, Distt. Durg (CG) Gulab, aged about 30 years, S/o A1I Cast Lodhi, Occupation Farmer; R/o. Village Hadgaon, Tah. Bemetara. Sahodra Bai, W/o Beni Ram, R/o Village Hadgaon, Tah., Beria, Distt. Durg. (CG) Bedan Bai W/o Sant Ram, (Sifa Ram) R/Q Village Hadgaon, Tali. Berla, Distt. Durg. (CG) 1 6. l-OC 13. Nathu .S/o Manaram, aged about 50 years, R/o Village Hadgaon, Tah. Berla, Distt. Durg. (CG) A. Girja Bai, Widow/of Avadh Lodhi, aged about 30 years, R/o Village Hadgaon, Tah. Berla, Distt. Durg. [QG] Ku. Pookku Bai Daughter of Avadh age 5 years, R/o Village Hadgaon, Tah. Berla, Distt. Durg (CG) C. Ku. Pinki Daughter ofAvadh age 3 years. Both B-C Minor, through; Mother Smt. Girja Bai, Widow/of Avadh Lodhi, All R/o ; Village Hadgaon, Tah. Berla, Distt. Durg. Kumla, Daughter of Mana Lodhi, aged about 30 years, R/o Village Hadgaon, Tah. Berla, Distt. Durg. (Chhattisgarh) Sanat S/o Mana Ram Lodhi, aged about 29 years, Both Sto 9s R/o Village Hadgaon, Tah. Berla, Distt. Durg (CG) Shanti Bai, W/o Padum Lodhi, aged about 55 years, R/o Masulggndi, Tah. Saaja, Distt. Durg (CG). Kamla Bai, Daughter Manaram, aged about 27 years, R/o Matara, ,Tah. Saaja, Distt. Durg (CG). Sushila Bai, Daughter Manaram, aged about 25 years, R/o Hadgaon, -Tah. Beria, Distt. Durg (CG). Rani Bai Daughter of Manaram | Lodhi, aged about 23 years, R/o Daniya, Tah. Saaja Distt. Durg (CG). 4. Usha Bai Daughter of Manaram, aged about 21 years, R/o Hagdaon, Tah. Berla, Distt. Durg (CG). State of Madhya Pradesh, through CollectorDurg(CG). CLAIMIN ORIGINALSUIT FQR PARTITION AND li'att^ Second Appea! No. 263/2004 Smt. Kanti Versus Respondents/defendants ifhAf? MV^i: ^ai^ \^^i Sd/- DhirendraMishra Judge ^- <; Second Appeal No. 263/2004 eilanfplaintiff : Smt. Kanti Bai Taran Singh and others Shri V.D. Bajpai learned Sr. Counsel with Shri Ashok Das Vaishnav for the appeHant. JUDG M EN T on/^-8-200i The appellant has preferred this appeal against the judgment and decree dated 30/1/2004 passed by Isarned Second Additional District Judge (FTC) Semetra in Civii Appea! No. 25-A/200S whereby the appeal preferred by respondents/defendants against the iudgment and decree dated 22/1/1982 passed by Civii Judge Class !1 Bemetra in Civil Suit No, 174-A'1997 has been aliowed and thesuit ofthe appeliant/ptaintiif for partition has been decreed. 2. Case of the plaintiff before the Tria! Court was that plaintiff was the daughter of Konda who was a member of Joint Hindu Family along with his father Narayan. Lands described Schedule "A" and ths house described in Schedule "B" beionged to fche Joint Hindu FamHy. Pjaintiffs mother Mainabai was the widow of Konda whereas one Hulasabai married Narayana after the death of Konda. Mansram and Buddhu are also the sons of Narayana. A.fter the death of Konda v/ho died some 23 years before the institution of the suit, his widow Majnabai inherited 1/4 share in the suit properiy. Plaintiff was born 4 months after the death of her father. Mainabai remarried in the year 1954 with one ihukhau Lodhl and thus Mainabai died a ci'/il death for the purpose of Joint Hindu Famiiy. Initialiy the plaintiff stayed with her mother even after her second marriage for 3 years. However, subsequently her grandfather Narayana, defendant No. 1 brought the plaintiff back with him and thus after the civil death of her mother the plaintiff was entitled for 1/4 share in the suit property as per the provisions of Section 164(2}(b) of the M.P. Land Revenue Code 1959, as prevaient in the year 1960. It was further pleaded that after marriage also the piaintiff continued to live with her grandfather Narayana. Defendants1 1 to S|in their written staternents admitted that after the death of father of the plaintil? Konda, Narayana married deceased- defendant No. 2. However, rest of the :rj ^ •6. ) , pleadings were denled and it was submitted that piaintiff is nol the mernber of Joint Hindu Family nor her father Konda lived jointly with Narayana and as such she was not entitled for 1/4 share in the suit property. Plaintiff was born 8 months after the death of Konda. Since IViainaba! did not remarry, she was a necessar/ party to the suit. P'aintiff has no right or interest over the suit property. The iands described in the plaint are self acquired properties of She defendants. Defendants 7 to 9 also denied the plaint allegations and submitted that plaintiff Kantibai was not the daughter of Konda and Konda was the member of Joint Hindu family. However, the property described in Schedule- A & B is not the property ofthe Joint Hindu Family. There was no cohabitation with Mainabai and Konda after their marriage due to illness of Konda and therefore, the plaintiff is not the daughter of Konda, and ^4ainabai married BHukhau Lodhi of viliage Hadgoan. 3. On the basis of the pieadings of the respective parties learned Trial Court framed issues and decreed the suit by recording a finding that the piamtiff is entitled for 1/4 share in the suit property though she was not entitled for damages as she was the daughter of Konda and the property described in Schedule A & B is the property of Joint Hindu Family and accordingly the suit was decreed. 4. During the pendency of appeal defendants 7 to 9 amended their written statements and pteaded that Mainabai married Bhukhu Lodhi in the year 1954 and gave birth hvo children namely Shantibai and Ninubai. Shantibai was born on 15.3.56. The plaintiff also preferred consequential amendment in the plaint. However, the specific pieading of defendants No. 7 to 9 has not been denied. !n the iight of the amendment in the plaint and the.wfitten statement the appe'late Court afforded an opportunity of leading evidence to the respective parties. Thereafter, plaintiff examined herseif and her witness Baldau and Bhausingh whereas the defendant examined Guiab in support of his case. Learned Lower Appeliate Court ailowed the appea!, set aside the judgment and decree of the trial Court and dismissed the suit ofthe plaintiff. 5. Leamed counsel for the appeilant submits thaf finding of the Lower Appel!ate Court reversing the well reasoned judgment of the trial Court is based on mis-appreciation of the Hindu Succession Act as also of M.P. Land Revenue Code and therefore substantiat questions of law as mentioned in riiemo of appeal arise for adjudicationofthisappeal. i—; BUFi: •^r-"^ -,^ •Ji£3ssx'^ 1 6. i have heard leamed Counsel for the appellant and gone through the 1- records of the Courts beiow as also memo of appeat. 7. The Lower Appeilate Court ailowed fhe appeal of the respondents/defendants by recording a finding that Mainabai contracted Churi marriage v/ith Bhukhu in the year 1954 after ths death of her former husband Konda who died in the year of 1953. She gave birth to hvo children namely Shantibai and Ninuabai Bhukhu. Shantibai was born on 15.3.58 and therefore, it can be presumed Shat Bhukhu and Maina got married before June 1955 whereas M.P. Land Revenue Code came into foree on 2 October 1959, therefore provisions of Section 164 (2)(b) of the M.P. Land Revenue Code of 1959 were not appiicabie in the instant case. Before coming into force of Hindu Successlon Act, the propei-ty right of the woman was go'/erned by Hindu Woman's Right to properfy Act 1937 and as per the Act of 1956 widow of a Joint Hindu Family was the limited owner of coparcenary property and she was entitled for maintenance and righ't of partition was not avaflab!e to the widows and absolute ownership over the property was conferred on the widows oniy after coning into force of Hindu Succession Act. In the instant case Mainabai did not initiate any proceedings for partition of coparcenary property before her marriage and she contracted marriage in the year 1955 and therefore, after remarriage the property reversed back fo other coparceners. The above finding is based on subsequent pleadings of the respective parties and evidence adduced by the parties cfuring the pendency of appeal. The appellant has.not raised subsequent deveiopments either in the memo of appeai or during the course of argument. 8. In the iight of the new evidence brought on record during the pendency of appeal and in the factual premises of the case to the effect Mainabai, mother of the plaintiff remarried before June 1955, i.e. before coming into force of Hindu Succession Act and IVI.P. Land Revenue Code, the very basls of the suif is iost and finding of the Lower Appellate Court that Mainabai got limited right:over the suit property reversed back to other coparcenaries after remarriage, cannot be faulted. 9. !n the !ight of the aforesaid discussion, no substantia! question!of iaw as proposed in the memo of appeal is involved for adjudication. Thus the appeal bejng without substance is tiabte to be dismissed. It is hereby dismissed|. Sd/- DhirendraMishra Judge i I ttl