IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.308 of 2000 Raj Dulari Devi W/o Murlidhar Singh, resident of village Mahadasah Pur Perg, P.S. Cheria Bariarpur, District Begusarai –Defendant-Appellant-Appellant. Versus 1. Smt.Ram Dulari W/o Budhinath Singh, resident of village Sujapur P.S.Goust Pura District Begusarai. -- Plaintiff-Respondent-Respondent Ist Set. 2. Keshari Devi W/o Rambilash Singh 3. Sunaina Devi W/o Akhideo Singh 4. Smt. Partha Devi W/o Sukhdeo Prasad Singh 5. Ludo Devi W/o Bhagirath Singh All residents of village Mahdasabpur Perg, P.S. Cheri Bariarpur District Begusarai. 6. Jagjani Devi W/o Chandrachur Singh 7. Mosst. Sudama Devi W/o Ramdeo Singh 8. Nand Kumar Singh son of Ramdeo Singh 9. Budhi Nath Singh son of Devan Singh 10. Manoj Kumar singh son of Budhi Nath Singh 11. Pankaj Kumar Singh son of Budhi Nath Singh 12. Ram Bichuri Devi daughter of late Darbhangi Singh 13. Sunil Kumar Singh son of Ranjit Kumar Singh 14. Daijee Devi W/o late Krishna Singh 15. Jagdeep Sahu son of Rameshwar Sahu 16. Bhola Singh son of Satya Narain Singh 17. Nokhe Singh 18. Ram Babu Singh, Both sons of Ramjapo Singh 19. Tak Narain Singh son of Darbhangi Singh 20. Dharam Shila Devi wife of Jagdish Sahu 21. Ram Kumar Singh 22. Prem Kumar Singh Both sons of late Suresh Singh 23. Ajay 24. Bijay 25. Chotan 26. Maya Singh Sr.Nos. 23 to 26 are sons of Late Sadanand Singh 27. Shashi Pathak son of Tarant Lal Pathak 28. Raj Nandan Pathak son of Tarant Lall Pathak 29. Ram Nandan Pathak son of Tarant Lall Pathak 30. Surendra Singh son of Ram Padarath Singh 31. Kapil Deo Singh 32. Chandradeo Singh Both sons of Late Sheo Narain Singh 33. Bindeshwari Singh son of Late Sheo Narain Singh Nos.2-33 residents of village Maidasah Pur, Perg, P.S. Cheria, District-Begusarai. – Defendants- Respondents- Respondents 2nd Set. - 2 - ----------- For the appellant : Mr. B.N.P.Singh, Advocate. For the respondents : None ---- 08. 09.02.2009 Heard learned counsel for the appellant. 2. This second appeal has been filed on behalf of the defendant-appellant-appellant against the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit No. 108 of 1978 (64/1991) which was filed by the original plaintiff (Chameli Devi) for partition of her moiety share of the suit properties detailed in Schedule I at the foot of the plaint as well as other ancillary reliefs. After her death her donee, namely the plaintiff-respondent- respondent Ist Set, was substituted. In the said suit, defendants Ist Party claimed to be the co-sharers of the plaintiff, whereas the defendants 2nd party were purchasers from defendants Ist Party and the plaintiff. However, only some of them appeared in the suit, but except defendant no.30, who is purchaser from one of the co-sharers Jhilo Kuwari wife of Khakhar Singh and is the appellant, no one contested the suit. 4. The said suit was decreed on contest with cost against defendant no.30 and ex parte without cost against the remaining defendants and moiety share of the plaintiff was declared to be partitioned holding that the purchasers will get their land in the share of their respective vendors and out of them the contesting defendant no.30 will get his land in the share of her vendor Jhilo Kuwari, by the learned Subordinate Judge III, Begusarai vide judgment and - 3 - decree dated 24.02.1993. The aforesaid judgment and decree of the trial court was challenged by defendant no.30 in Title Appeal No.06 of 1993 which was dismissed on contest with cost against the contesting respondent (plaintiff) and without cost against the remaining respondents vide judgment and decree dated 26.05.2000. The said judgments and decree of the learned courts below are challenged in the instant second appeal. 5. It is an admitted fact that the suit property belonged to Parsi Singh, who left behind two sons Gudar Singh and Natho Singh, out of whom, Gudar Singh died in the year 1950-51 and defendants 1st Party are his heirs and legal representatives, whereas Natho Singh died issueless in the year 1940 leaving behind a widow Chameli Devi, who was the plaintiff of the suit. The claim of the plaintiff was that on the death of her husband, she got a right of maintenance and by the advent of the Hindu Succession Act, 1956, she became entitled to half share in the suit property being the widow of Natho Singh, who had died issueless. On the other hand, defendant no.30 claimed that the plaintiff was not entitled to half share in the entire property as she was being maintained from only small portion of the suit property and the defendants had already partitioned the suit properties among themselves prior to 1956 and both the parties, according to their respective shares, have sold the properties to defendants 2nd party. 6. Both the learned courts below specifically found that although notices were sent to all the defendants, out of whom, the defendants 1st Party were admittedly the heirs of Gudar Singh, - 4 - whereas defendants 2nd party were the purchasers from defendants 1st party and the plaintiff, but neither any heir and legal representative of Gudar Singh, namely defendants 1st party, contested the suit, nor even the purchasers, who were defendants 2nd party, contested the suit, except defendant no.30 who was purchaser from Jhilo Kuwari, who was the daughter-in-law of Gudar Singh. Hence, the claim of defendant no.30 was not supported by pleadings of any of the co-defendants, including the heirs of Gudar Singh. 7. Accordingly, both the learned courts below found that the statement of contesting defendant no.30, who is not a member of the family of Prasi Singh and simply a purchaser of a portion of the land from the widow of Khakhar Singh in the year 1978 and whose statement is based only on the alleged inquiry made by her husband, cannot be relied upon with respect to partition or any other affairs of the family. It was also found that although 18 witnesses had been examined for the defendants, but none of them was present at the time of the initial separation of two branches, nor even the date of separation of Natho Singh from his nephews has been given, nor any evidence in that regard has been produced, and hence there was no alternative for the learned courts below but to accept the case of the plaintiff. 8. Learned courts below have rightly relied upon a decision of Full Bench of this court in case of Mt. Khatrani Kuer V. Smt. Tapeshwari Kuer, reported in A I R 1964 Patna 261, in which it was held that a Hindu widow when she gets the interest of her husband under section 3(2) of the Hindu Women’s Right to - 5 - Property Act, 1937, does not become the coparcener in the joint family, but what the section gives to a widow is her husband’s interest in the joint property and not the status or position in the joint family and she gets the limited interest in the property known as Hindu Womens eastate under Section 3(3) of the Act, and hence although she does not become a coparcener in the family, she becomes a family member with special statutory right. 9. The said statutory right as per the said decision became a full fledged right of inheritance after coming into force of the Hindu Succession Act, 1956 and hence the original plaintiff acquired the moiety share of her husband in the suit property out of which she gifted a portion of her share by registered deed of gift dated 20.3.1980 in favour of Smt. Ram Dulari Devi who was substituted in the suit after the death of the original plaintiff. In the said circumstances, the learned courts below rightly came to the conclusion that the original plaintiff Chameli Devi had a moiety share in the suit property and the deed of gift executed by her in favour of Smt. Ram Dulari Devi was legal and valid and hence the suit properties were fit to be partitioned as earlier no partition had taken place. So far the remaining share of the branch of Gudar Singh is concerned, the learned courts below had specifically held that defendant no.30 will get his land in the share of Jhilo Kuwari wife of Late Khakhar Singh to the extent of the sale deed in favour of defendant no.30. 10. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned judgments and decree of - 6 - the learned courts below, nor does it find any substantial question of law involved in the instant second appeal, which is accordingly, dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. Sunil (S. N. Hussain, J.)