Case: Ram Nath Sao @ Ram Nath Sahu Since Deceased Thr. L.Rs. &amp; Others Vs. Goberdhan Sao Since Deceased Thr. Lrs. &amp; Others

2. At the outset, the following genealogical table is being set out to enable a clear and easy understanding of the facts and the findings with regard to the entitlement of the parties that would be arrived at in the course of the deliberations that followFuchan Mahto – died 1940Wife Puniya Devi – died 1967Mithu Sao (son)(died 1961)Ugni Devi (daughter)(died 1995)3. The case of the respondents plaintiffs is that Fuchan Mahto (died in 1940), the common ancestor of the parties had a son Muthu Sao who died in the year 1961. Mithu Sao had two wives, namely, Temni (1st wife) and Bilaso Devi (2nd wife). At the time of the filing of the suit for partition Temni (1st wife) was no more. The defendants in the suit Ramnath, Kashinath Buchwa are the sons and daughter of Mithu Sao and Temni (1st wife) whereas the plaintiffs Govardhan, Jagdish, Baldeo and Sarita are the sons and daughter of Mithu Sao and Bilaso Devi (2nd wife), who is a co-plaintiff4. According to the plaintiffs, they along with the defendants constituted a joint Hindu Mitakshra family which owned ancestral land recorded under Khata No.19 of village Lapanga in the district of Hazaribagh. It is the case of the plaintiffs that the joint family also acquired lands in several other villages in the name of one or other members of the joint family. According to the plaintiffs, the parties continued in joint possession of the properties, both ancestral and subsequently acquired. As the members of joint family had increased it became inconvenient to continue to remain joint. Hence the suit for a decree of partition was filed5. The defendants contested the suit, inter alia, on the ground that there was no unity of title and possession between the parties. According to the defendants, after the death of Mithu sao in the year 1961 or even before his death there was disruption in the family on account of the fact that Mithu Sao had married twice. There were serious differences in the family and the children of the first wife Temni separated from Mithu Sao. It is the case of the defendants that after the death of Mithu Sao the children of first wife and second wife again separated. The defendants pleaded that as there was no joint family in existence both the parties had separate earnings and only the ancestral lands of Khata No.19 are available for partition, major portion of which had been acquired by the Government and compensation amount had been evenly distributed amongst the parties according to their respective shares. According to the defendants, the other items of the Schedule property are self-acquired properties which are not liable to be partitioned6. The learned trial Court decreed the suit holding that the plaintiffs are entitled to the extent of 63-1/2 paise share in the Schedule B property; items 1 to 8 of village Labaga in Schedule C; items 1 and 2 of village Rasda in Schedule C; and items 1 to 8 of village Hafuwa in Schedule C properties and 12 paise share in the properties mentioned in Item No.9 of village Hafuwa in Schedule C properties. The defendants appellants, on the other hand, were found to be entitled to the remaining 37-1/2 paise in the Schedule B property and items 1 to 8 of village Labaga; items 1 and 2 of village Rasda; and items 1 to 8 of village Hafuwa in Schedule C properties. By the said decree which has been affirmed in appeal by the High Court, so far as the property mentioned in item No.9 of Schedule C is concerned, 12 and 11 paise share therein in favour of the plaintiffs and department have been granted.

Reasoning: As the said property i.e. item No.9 of Schedule C pertain to 23 paise share of the five sons of Muthu Sao in property purchased by them along with other persons by 8 different sale deeds, the said property is not the subject matter of the present appeal in its truncated form, as indicated earlier7. This Court while issuing notice in the present appeal confined the area of scrutiny to the question of allocation of shares as regards to the properties found to be joint family properties. In view of the aforesaid limited notice, the issue with regard to the shares of the respective parties in the joint family properties alone will have to be determined in the present appeal and no question of reopening the concurrent findings of the learned forums below with regard to the existence of joint family and the holding of properties jointly can arise11. On the date of death of Fuchan Mahto, his son Mithu Sao did not have any male issue. However, the joint family in question can be understood to have continued with Mithu Sao as the Karta and the property continued to belong to the joint family. The above view would find support from the decision of this Court in Gowli Buddanna v. Commissioner of Income Tax, Mysore, Bangalore, (1966) 3 SCR 224 , relevant portion of which is extracted below:Property of a joint family therefore does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights which an owner of property may possess. In the case in hand the property which yielded the income originally belonged to a Hindu undivided family. On the death of Buddappa the family which included a widow and females born in the family was represented by Buddanna alone but the property still continued to belong to that undivided family and income received therefrom was taxable as income of the Hindu undivided family12. The position, therefore, prior to the coming into force of the Hindu Succession Act, 1956 was that the joint family continued on the death of Fuchan Mahto with Mithu Sao as the sole coparcener and the joint family properties continued to belong to the family and furthermore Puniya Devi continued to have a share in the property14. After the death of Mithu Sao in the year 1961, following the provisions of Section 6 of the Hindu Succession Act, 1956, a notional partition just before the death of Mithu Sao will have to be presumed. There would, therefore, be 8 sharers in the joint family properties and the share of each one of them would be as follows:Insofar as Bilso Devi, the wife of Mithu Sao is concerned, she would be entitled to 1/8th share of the joint family properties upon the notional partition being given effect to15. Next aspect of the case is with regard to the 1/8th share of Mithu Sao and the devolution of the said share to the surviving members of the joint family. In this regard, it can be held without any difficulty that under the proviso to Section 6 of the Hindu Succession Act, 1956 the share of Mithu Sao in the joint family property (?th) would devolve by intestate succession, in the absence of a will, in the following manner16. Thus after 1961 Puniya Devi being the widow of Fuchan Mahto had 1/8th plus 1/72th share in the joint family property, namely, 10/72th share. Puniya Devi died in the year 1967 leaving behind her daughter Ugni Devi and the children of her predeceased son Mithu Sao. Ugni Devi will be entitled to receive one-half share of Puniya Devi i.e. half of 10/72th share i.e. 10/144th share. The remaining 10/144th share that would go to the branch of Mithu Sao will have to be divided amongst 8 heirs of Mithu Sao, namely, the widow and the seven children. Thus, the aforesaid 10/144th share would devolve in the following manner