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Judgment
A.K. Shrivastava, J.
This second appeal has been filed by Defendants assailing the judgment and decree passed by two Courts below decreeing the suit of Plaintiff/Respondent No. 1.
The suit property was ancestral property of Ganaram who died on 22-11-1986. Ganaram was having a son namely Sahdeo who died in the year 1972 i.e. during the life time of Ganaram. However, the ancestral property was not partitioned during the life time of Ganaram and Sahdeo.
Plaintiff-Sewanti who is the widow of Sahdeo filed suit for partition and separate share. According to the Plaintiff, she is entitled to 7/12 share in the suit property and that portion be partitioned and separate possession be delivered to her. So far as pedigree of the parties is concerned, there is absolutely no dispute. The trial Court and the first Appellate Court decreed the suit of Plaintiff holding that she is entitled to 7/12 share in the suit property. Appellant No. 1-Smt. Lehja who is widow of Ganaram was arrayed as Defendant No. 1 in the plaint. Admittedly, Defendant No. 1 - Smt. Lehja is mother-in-law of Plaintiff Sewanti Bai. The suit is for partition.
Defendants No. 1 to 5 have assailed the judgment and decree passed by two Courts below.
this Court on 13-12-2005 admitted this second appeal on the following substantial question of law:
Whether learned Courts below have committed an error in holding 7/12 share of the Respondent No. 1, in the entire property without considering the right of Lahaza (applicant No. 1) the mother of the deceased Shahdeo who was also one of the successor along with the Respondent No. 1 regarding share of said Shahdeo?
I have heard Shri H.S. Thakur, Learned Counsel for the Appellants, Shri D.S. Baghel, Learned Counsel for Respondent No. 1 and Shri Sudesh Verma, learned Govt. Advocate, for Respondent No. 2. The State of Madhya Pradesh (Respondent No. 2) is a formal party in this appeal.
Having heard Learned Counsel for the parties, I am of the view that this appeal deserves to be allowed.
Regarding Substantial Question of Law:
Admittedly, the suit property is ancestral property. Admittedly, Ganaram, whose widow is Appellant/Defendant No. 1 - Smt. Lehja, died on 22-11-1986. This is also no more in dispute that Sahdeo is the son of Ganaram and he (Sahdeo) died in the year 1972 i.e. during the life time of Ganaram. Plaintiff-Sewanti is the widow of Sahdeo. If there would have been partition during the life time of Ganaram, Smt. Lehja who is wife of Ganaram and Sahdeo who is the son of Ganaram and Ganaram himself would get 1/3rd share each. Since Ganaram has died leaving six heirs, therefore, 1/3rd share of Ganaram will be further divided into six shares which would mean each would get 1/18 share in the share of Ganaram. This would mean that Sahdeo would also get 1/18 share. Since Sahdeo has died issue-less, as a result of which his share 1/18 would be further divided into two i.e. 1/36 share each would go to his mother Defendant No. 1 - Smt. Lehja and 1/36 to his widow Smt. Sewanti. Since in the decree the share of mother Smt. Lehja-Defendant No. 1 has not been included, therefore, I am of the view that according to Section 8 of Hindu Succession Act, 1956, as Smt. Lehja is the mother of Sahdeo, is entitled to 1/36 share in the property of Sahdeo. Substantial question of law is thus answered accordingly. The judgment and decree of the two Courts below is, accordingly, modified.
The appeal is, accordingly, allowed to the extent indicated hereinabove with no order as to costs.