Sheodhar Prasad Singh v. Jagdhar Prasad Singh — 1963 DIGILAW 138 (PAT)

Judgment Ramratna Singh, J. 1. This appeal by defendant No. 2 is directed against the decision of an Additional Subordinate Judge of Patna who decreed a suit for partition or one-fourth share in the suit properties, after reversing the decision of a Munsif of Patna dismissing the suit. The parties are some of the descendants of one Bihari Singh, the second son of Chuni Singh who died leaving behind him also another son named Narayan. These two brothers separated from each other in all respects long ago. Bihari died leaving three sons, namely Sheo Prasad, Mahabir (defendant No. 1) and Raghubir. They also separated from one another in all respects by 1919. Raghubir died in 1920, leaving behind him a widow who came into possession of her husbands estate. This widow died; and Sheo Prasad took possession of Raghubirs estate. Therefore, Mahabir and his two sons, namely Sheodhar (defendant No. 2) and Jagdhar (plaintiff No. 1) instituted a suit in 1932, for the declaration of title to one-half of the estate of Raghubir and for partition of the same, against Sheo Prasad and his descendants. A preliminary decree was passed by the trial Court and upheld by the appellate Court. Then there was a compromise (Ext. 3) on the 2nd May, 1939, by which the plaintiffs of that suit got one-half of the estate of Raghubir; and it was agreed that each of the three plaintiffs would get equal share in this part of the estate, that is, Mahabir, Sheodhar and Jagdhar would each have aqual share in half the estate of Raghubir. Another relevant term of the compromise was that, out of the ancestral property, that is the-property that Mahabir had got after partition amongst the three sons of Bihari, one-half was given to Mahabir and the remaining half to Sheodhar. On the 18th January, 1951, Mahabir executed a registered deed of gift in favour of Sheodhar, in respect of all the family properties. This gift was the cause of action for the present suit which was instituted on the 9th February, 1952. 2. Defendant No. 3 is the son of Sheodhar; defendant No. 4 is the wife of Mahabir; and plaintiffs 2 and 3 are the sons of Jagdhar. 3. There was a dispute between the parties regarding the legitimacy of Jagdhar. This gift was the cause of action for the present suit which was instituted on the 9th February, 1952. 2. Defendant No. 3 is the son of Sheodhar; defendant No. 4 is the wife of Mahabir; and plaintiffs 2 and 3 are the sons of Jagdhar. 3. There was a dispute between the parties regarding the legitimacy of Jagdhar. The case of defendant No. 2 who contested the suit was that Muni Kuer (defendant No. 4) was not the legally married wife of Mahabir, and, therefore, Jagdhar, who is admittedly the son of Mahabir through Muni Kuer, was illegitimate. On the other hand, the case of the plaintiffs was that Jagdhar (plaintiff No. 1) was a legitimate son of Mahabir, inasmuch as his mother Muni Kuer was legally wedded to Mahabir, and, therefore, he was entitled to one-fourth share of the suit properties, made up of half the estate of Raghubir plus the ancestral properties which Mahabir got by partition amongst his brothers. The plaintiffs challenged the aforesaid terms of compromise in the title suit of 1932 on the ground that Sheodhar, who was a pleaders clerk, managed to insert those terms during his minority. It was further alleged that the gift had been executed by Mahabir at the age of 80 years under the undue influence of and fraud practised upon him by Sheodhar. The plaintiffs therefore prayed for declaration of titla to and recovery of their possession of their share after partition with mesne profits and also for declaration that the deed of gift was not binding on them. Defendant No. 1 filed a written statement supporting the case of the plaintiffs, but he did not take any further interest in the litigation ft may be mentioned here incidentally that defendant Mahabir died during the pendency of this second appeal in 1957. 4. The defendant appellant, who contested the claim of the plaintiff, alleged that Jagdhar was an illegitimate son of Mahabir, that the deed of gift had been executed by Mahabir of his free will and without any undue influence or fraud, and that the plaintiffs were not entitled to sue inasmuch as they had no title to the suit properties nor were ever in possession of the same. He further asserted that the compromise in the earlier litigation was a genuine transaction and that the plaintiffs could not challenge the terms thereof, because, even according to the allegations made in the plaint, Jagdhar attained majority in October 1942. It was also asserted that Mahabir and Sheodhar had acquired title, by adverse possession, to the properties, allotted to them by that compromise by the 2nd of May, 1951, that is, about nine months before the institution of the suit. 5. Tha trial Court dismissed the suit of the plaintiffs mainly on the finding that Jagdhar was an illegitimate child of Mahabir and he could not challenge the deed of gift. The first appellate Court, however, found that Jagdhar was the legitimate son of Mahabir and that the deed of gift was void and not binding on the plaintiffs. That Court, therefore, decreed the suit. 6. Mr. Lainarayan Sinha, who appeared for the appellant, challenged the finding of the learned Subordinate Judge regarding the lawful marriage of Muni Kuer with Mahabir and the legitimacy of Jagdhar. He submitted that the learned Subordinate Judge has arrived at this finding by deliberately excluding some evidence which was admissible. The case of the appellant was that Muni Kuer began to live as concubine of Mahabir after the the death of her husband, who was one Mahahaj Din oi a certain village in the district of Rai Bareilly in Uttar Pradesh, and, therefore, Jagdhar was born of this illicit connection. On the other hand, the case of the plaintiffs was that Muni Kuer was married for the first time to Mahabir and Jaghar was bom of this lawful marriage, Both the counts below referred to the well settled principle that the law presumes in favour of marriage and against concubinage and that long cohabitation raises a presumption of lawful wedlock; and this principle was not disputed at the bar in this Court. But the conclusion of the two Courts below on the question whether the evidence on record was sufficient or not to rebui the presumption was different. The learned Munsif (thought that the evidence was not sufficient to rebut (this presumption, and he found that Jagadhar was an illegitimate son of Mahabir, whereas the learned Additional Subordinate Judge was of the opinion that the presumption stood unrebutted, and that Jagadhar was the legitimate son of Mahabir. The learned Munsif (thought that the evidence was not sufficient to rebut (this presumption, and he found that Jagadhar was an illegitimate son of Mahabir, whereas the learned Additional Subordinate Judge was of the opinion that the presumption stood unrebutted, and that Jagadhar was the legitimate son of Mahabir. The learned Additional Subordinate Judge has rightly observed that the learned Munsif had at the outset gone into the question whether Muni was the legally married wife of Mahabir; and, having found that the evidence adduced on behalf of the plaintiffs was not sufficient to prove this fact, he thought that the presumption had been rebutted. On the other hand, as has bean rightly observed by the learned Additional Subordinate Judge, the approach should have been to assume that there was a strong presumption in favour of the marriage between Muni Kuer and Mahabir, and then the question as to how far the evidence was sufficient to rebut the prasumption had to be considered. The learned Additional Subordinate Judge has discussed all the evidence and met all the reasonings of the learned Munsif and then come to the conclusion that the appellant had failed to rebut the presumption. This is a finding of fact. 7. Mr. Lainarayan Sinha submitted that the learned Additional Subordinate Judge had wrongly discarded some documentary evidence supporting the case of the appellant as inadmissible. Several documents were brought on the record by the parties containing previous statements in respect of the question of legitimacy of Jagadhar. The earliest document is the plaint of the title suit of 1932. Jagdhar who was one of the plaintiffs of that suit along with Sheodhar and Mahabir was described therein as the son of Mahabir without any statement to the effect that he was an illegitimate son of Mahabir. This fact amounts to an acknowledgment by Mahabir and Sheodhar that Jagdhar, Who was then a minor, was the legitimate son of Mahabir. Jagdhar, a grand son of Narayan, the brother of Bihari, and all the members of the branch of Sheo Prasad were defendants in that suit It was not alleged even in their written statement that Jagdhar was not the legitimate son of Mahabir. In short, there is nothing on the record to show that any descendant of Chuni challenged the legitimacy of Jagdhar in that suit, and this is an important circumstance in favour of Jagdhar. In short, there is nothing on the record to show that any descendant of Chuni challenged the legitimacy of Jagdhar in that suit, and this is an important circumstance in favour of Jagdhar. Admittedly, Mahabir and Muni Kuer were living together sinca more than thirty or thirtyfive years before the institution of the suit; during this period of cohabitation Muni Kuer gave birth "to a daughter who is now married; and Jagdhar was born after her. Muni Kuer gave evidence in Court supporting the case of the plaintiffs. Mahabir filed a written statement also supporting that case. It is true that much importance cannot be attached to the written statement in the absence of the evidence of Mahabir. It is remarkable, however, that summons was taken out for the examination of Mahabir by the appellant; but for reasons best known to him he did not examine him. Mahabir himself filed a petition in Court to be examined on commission, as he was too old to come to Court; but it is not clear why he was not examined on commission. Again, there are two admitted documents showing that Mahabir acknowledged the fact that Jagdhar was his legitimate son. These are notices (Exts. 4 and 4/a) dated the 27th March, 1950, which Mahabir sent both to "Shecdhar and Jagdhar asking them to partition his share in the family properties. These notices were sent before the execution of the deed of gift when there was no dispute between the parties. 8. There are, however, other documemts in which Jagdhar was described as the illegitimate son of Mahabir; and it is with regard to those documents tha|t Mr. Lal narayan Sinha said that the learned Subordinate Judge had wrongly discarded them. Of these, F and F(1) are the depositions of Mahabir in two rent suits of 1950. The learned Subordinate Judge observed that, inasmuch as Sheodhar was basing his claim on the basis of the gift, he was representative-in-interest of Mahabir, and, therefore, he could not use these statements in his favour. Here the learned Additional Subordinate Judge went wrong, because the compromise of 1939 in the title suit of 1932 as well as the two aforesaid notices amounted to severance in status of Mahabir and his descendants, and, therefore, Sheodhar could claim only the interest of Mahabir under the deed of gift. Here the learned Additional Subordinate Judge went wrong, because the compromise of 1939 in the title suit of 1932 as well as the two aforesaid notices amounted to severance in status of Mahabir and his descendants, and, therefore, Sheodhar could claim only the interest of Mahabir under the deed of gift. Further, acknowledgment and repudiation of legitimacy, both being conduct, are admissible in evidence under Sec. 50 of the Indian Evidence Adt. But the learned Additional Subordinate Judge has given another reason for not relying on the statement of Mahabir in these two rent suits, namely, they-were made after the deed of gift had bean executed when the dispute between the parties had started. Another document is an affidavit (Ext. E) dated the 26th November, 1940, which Mahabir had sworn in Execution Case No. 1494 of 1939 for withdrawing certain amount of money; and he stated in the affidavit that Jagdhar was his Illegitimate son. It is, however, not deaf why the statement regarding illegitimacy was required be made in such an affidavit, though it was admissible in evidence in the present suit. The fourth document is the certified copy of the decree of Title suit No. 269 of 1938 (Ext. H) instituted by Mahabir Sheodhar and Jagdhar against Ramchandra Prasad and others for recovery of damages. In that decree, which was prepared in 1939, Jagdhar was described as the illegitimate son of Mahabir, The learned Additional Subordinate Judge has not given any reason for observing that this statement in the decree based on the plaint of the title suit is inadmissible and cannot be proved by defendant No. 2. I agree with Mr. Lalnarayan Sinha that it is admissible. But the aforesaid documents cannot outweigh the acknow-legment in support of legitimacy made in the plaint of title suit of 1932 and the notices, Exs. 4 and 4 (a) and, therefore, the contents of the said documents do not affect the conclusion of the Court below. 9. In this connection, a question arose whether Muni Kuer could be legally married to Mahabir. It is admitted in evidence that the parties are Jats by caste and they migrated to Bihar long ago from Rai Bareilly district in the State of Uttar Pradesh. The learned Munsif found that Muni Kuer was a widow before she began to live, with Mahabir 30 or 35 years ago. It is admitted in evidence that the parties are Jats by caste and they migrated to Bihar long ago from Rai Bareilly district in the State of Uttar Pradesh. The learned Munsif found that Muni Kuer was a widow before she began to live, with Mahabir 30 or 35 years ago. As stated earlier, he rejected the story about the marriage between the two, while the Subordinate Judge accepted that story. The Subordinate Judge did not, however, consider it necessary to go into the question whether Muni Kuer was a virgin or widow, when she became the wife of Mahabir some witnesses have been examined on behalf of the appellant that the parties were Kshatriyas by occupation, and, therefore; widow marriage was not permissible in their community. The Subordinate Judge did not examine the evidence of these witnesses, and, therefore, Mr. lalnarayan Sinha submitted that it was a case of non-consideration of the evidence by the first appellate Court. But both that Courts below relied on some decisions of the Allahabad High Court in which it was held that Jats were Sudras. Mr. Lalnarayan Sinha did not dispute that widow marriage was allowed among Sudras; but he submitted that these old dicisions of the Allahabad High Court can have no weight in the instant casa. Admittedly, however, Muni Kuer began to live with Mahabir about 30 or 35 years before the institution of the suit, that is, sometime from 1917 or 1922. The learned Munsif had referred to a decision of the Allahabad High Court in 1914. The Subordinate Judge has referred to two other decisions of the Allahabad High Court to the same effect. Further, he also referred to the evidence on record that the sister of Jagarnath, grandson of Narayan Singh of this family, was remarried after she became a widow. In the circumstances, the decision of the Allahabad High Court carries weight in respect of the widow re-marriage of Muni with Mahabir sometime between 1917 and 1922. Moreover, the Hindu Widows Remarriage Act of 1856 has legalised the remarriage of a Hindu widow. Hence the non-consideration of the evidence of the aforesaid witnesses of the appellant regarding the custom of sagai marriage amongst the Jats cannot affect the finding of the learned Subordinate Judge. 10. Moreover, the Hindu Widows Remarriage Act of 1856 has legalised the remarriage of a Hindu widow. Hence the non-consideration of the evidence of the aforesaid witnesses of the appellant regarding the custom of sagai marriage amongst the Jats cannot affect the finding of the learned Subordinate Judge. 10. The question now for consideration is whether, in view of the finding of the learned Subordinate Judge that Jagdhar is a legitimate son of Mahabir, the plaintiffs respondents are entitled to arty decree for partition of the suit properties. Mr. Lalnarayan Sinha relied on the compromise in the title suit of 1932, according to which plaintiff No. 1 (Jagdhar) was given one-third share in half the estate of Raghubir but no share in the property which Mahabir had inherited from his ancestor. He submitted that the decree for partition in favour of ther plaintiffs must, therefore, be limited to the share that Jagdhar was given by this compromise in Raghubirs estate. Mr. R.S. Chatterji, who appeared for the respondents, submitted at first that the compromise in respect of the ancestral property of Mahabir was invalid on account of non-registration, as that property was beyond the scope of the suit. But, when he was confronted with the position that the share that was given to Jagdhar was in lieu of the share given to him in Raghubirs estate to which under the law Mahabir alone was entitled, he submitted that the entire compromise was void and it must be ignored. His argument in support of this sub-mission was that this compromise, which was entered into after the preliminary decree had been affirmed by the Court of appeal admittedly during the minority of Jagdhar, was void as against the minor, inasmuch as there was nothing to show that this compromise was recorded by the court or that the permission of the Court to compromise on behalf of the minor had been obtained. This legal position was accepted by Mr. Lalnanyan Sinha; but he rightly submitted that Jagdhar could not get any interest or share in the estate of Raghubir, as it devolved on the nearest reversioner, namely, Mahabir. This legal position was accepted by Mr. Lalnanyan Sinha; but he rightly submitted that Jagdhar could not get any interest or share in the estate of Raghubir, as it devolved on the nearest reversioner, namely, Mahabir. The preliminary decree in the title suit of 1932 did not determine the interests of the plaintiffs inter se in the properties which formed the subject-matter of that suit and any statement made in that suit by Mahabir at any stage could not confer any title on Jagdhar or Sheodhar in the estate of Raghubir. Hence, it must be held that Mahabir alone got the estate of Raghubir; and, consequently, the deed of gift executed by Mahabir operated in full in respect of this estate, unless the gift is held to be not binding on the plaintiffs. 11. Regarding the gift, it was conceded fay Mr. Chatterji that it was not void but only voidable and that too at the option of Mahabir alone. Mahabir died about six years after this gift during the pendency of this second appeal and he took no steps in his lifetime to challenge the same. Hence, the gift could legally operate in respeat of the exclusive property of Mahabir, and the plaintiffs are not entitled to get any share in that part of the suit property which constituted one-half of Raghubirs estate. 12. The objection to the claim of the plaintiffs in respect of Raghubirs estate cannot, however, apply to their share in the property which Mahabir derived from his ancestor in the partition amongst his brothers. The gift, so far as it relates to the ancestral property, cannot affect the interest of the plaintiffs, whether it be treated as a joint family property or a property in which shares were defined, because of the notices of 1950. The plaintiffs are, (therefore, entitled to a share in this ancestral property; and, after Mahabirs death, their share has to be determined keeping in view the position of Muni Kuer. 13. What is then the position of Muni Kuer in respect of the ancestral property? The plaintiffs are, (therefore, entitled to a share in this ancestral property; and, after Mahabirs death, their share has to be determined keeping in view the position of Muni Kuer. 13. What is then the position of Muni Kuer in respect of the ancestral property? In paragraph 315 at page 485 of Mullas Hindu Law, 12th edition, it is stated that a wife cannot herself demand a partition, but !1 a partition does take place between her husband and his sons, she Is entitled to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband; and, 3 large number of decisions are referred to in the relevant footnotes in support of this principle. Similarly, it is stated in paragraph 316 of that book that a mother cannot compel a partition so long as the sons remain united; but, if a partition takes place between the sens, she is entitled to a share equal to that of a son in the coparcenary property. It was submitted by Mr. Chatterji that, in view of the notices dated the 27th March, 1950, given by Mahabir to his two sons, there was severance of status; and, thereafter, Muni Kuer was entitled to a share in the ancestral property even though she was not named as a cosharer in the notices. But it was held by the Privy Council in Pratapmull Agarwalla V/s. Dhanbati Bibi, AIR 1936 PC 20 that the mother or the grandmother is not entitled to a share until actual partition is effected by metes and bounds. Their Lordships quoted with approval two deci-sions of the High Courts in India. In that first decision, it was held that, according to the Mitakshara law, the mother or the grand mother is entitled to a share when sons or grandsons divide the family estate between themselves; but she cannot be recognised as the owner of such share until the division, is actually made, as she has no pre-existing right in the estate, except a right of maintenance. In the other decision, it was "held that i,t is only when the sons actually divide the property and effect a complete partition that the mother can get a share; and there is nothing in the Mitakshara front which it maybe inferred that upon a mere severance of the joint stajtus of a Hindu family a mother can claim a share. Their Lordships further observed that there are no differences in this respect between the rights of a wife and those, of a mother or a grandmother. 14. While the judgment was pending, Mr. Chatterji wanted to cite an authority which he had, come across, recently, and the learned counsel were heard again in July or August last. Mr. Chatterji relied on the decision of a Full Bench of the Bombay High Court in Parappa: Ningappa V/s. Mallappa Kallappa, 58 Bom LR 404 : ((S), AIR 1956 Bom 332 ) (FB) and submitted that, according to this decision, which has explained the aforesaid Privy Council decision, the wife or mother would be entitted to a share, even without partition of the joint family properties by metes and bounds. But having gone through-the decision, I am unable to agree with him. The Full Bench had to decide the) question of the interest that an alienee takes in joint property unauthorisedly alienated by the father. It was argued on behalf of the aliene-that on the alienation being challenged by other members of the joint family the only interest in the joint family property, which would be safeguarded and which would not go to the alienee was the share of the son and, as the mother has no share) in the joint family property, her interest was validly alienated by her husband. This argument was repelled by their Lordships, They said; "It must be borne in mind that the original principle-of Hindu law was that a father or a karta could alienate joint family property only for legal necessity. If the alienation was unauthorised, he could not even alienate his own share or his own interest. This argument was repelled by their Lordships, They said; "It must be borne in mind that the original principle-of Hindu law was that a father or a karta could alienate joint family property only for legal necessity. If the alienation was unauthorised, he could not even alienate his own share or his own interest. This original principle of Hindu law had been departed from by reason of a series, of Judicial decisions, but in our opinion the exception engrafted upon the original principle of Hindu law must be strictly restricted to the alienation being upheld to the extent that the alienation affects the interests of the alienor." Then, Their Lordships referred to the legal fiction that in order to determine the interest of the alienae it must be assumed that there was a partition when the alienation took place. In that case, at the time of the assumed partition there were the father, the son and the wife, and, therefore, if a partition was effected, the wife would have got a share equal to that of the son, and, consequently, the only interest in the joint family property that the father could have alienated was his share end not the share of his wife which would be a separate chare assignable to her on the supposed partition. Towards the end of the decision, Chagla, C. J., who delivered the judgment, discussed the effect of the aforesaid Privy Council decision in these words; "What the Privy Council laid down was that, according to Mitakshara Law, the wife, mother or grandmother is entitled to a share when there is a partition by division of the family estate between coparceners, but she cannot be recognised as the owner of such share until the partition is actually made as she has no pre-existing right in the estate except a right of maintenance and further that there is nothing in the. Mitakshara from which it can be inferred that upon a mere severance of the joint status of the family, any of the above-mentioned females can claim a share. Now, the legal fiction that we have introduced is not the severance of the joint status of the family. If that was the legal fiction, undoubtedly it could not be said that the wife would have a share. Now, the legal fiction that we have introduced is not the severance of the joint status of the family. If that was the legal fiction, undoubtedly it could not be said that the wife would have a share. But the legal fiction we have introduced and which must be given effect to is that there must be a notional partition, 3 partition must be effected, and the question that has got to be considered is who are the sharers on such a partition being effected. To that question the answer is obvious. If a partition was effected at the date of the auenation, undoubtedly the wife or the mother would have a share in the Joint family property." Thus there is nothing in the Bombay decision to Indicate that their Lordships interpreted the Privy Council decision in a manner different from what I have done earlier. 15 There is, however, a decision of the Supreme Court in Munnalal V/s. Rajkumar, AIR 1962 SC 1493 , which affects the Privy Council decision to some extent. This decision was not cited at the bar, but I have again heard the learned counsel about its effect. In that case, a Hindu lady named Khilonabai was declared entitled to a fourth share in the joint family properties by a preliminary decree dated the 29th July, 1955 in a partition suit. She died after the Hindu Succession Act was brought into operation on the 14th June, 1956, but before the final decree, It was arguad that, on her death before actual division of the properties, her inchoate interest again reverted to the estate out of which it was carved out; and reliance was placed on the aforesaid decision of the Privy Council Their Lordships of the Supreme Court held that the rule of Hindu law contained in that decision was affected by Sec.14 of the Hindu Succession Act, by which it is intended to convert the interest which a Hindu female has in a property into an absolute estate and that the said rule of Hindu law cannot apply after the enactment of the Hindu Succession Act. Hence, it was held that the right declared in favour of Khilonabai by the preliminary decree must be regarded as property possessed by her and she became a fresh stock of descent in respect of that property. Hence, it was held that the right declared in favour of Khilonabai by the preliminary decree must be regarded as property possessed by her and she became a fresh stock of descent in respect of that property. Thus the rula laid down in the decision of the Privy Council is now modified. 16. The question for consideration, therefore, is whather on account of the notices dated the 27th March, 1950 by Mahsbir ito his two sons, resulting in the severanca of the joint status, only an inchoate right in the property was created in Muni Kuer in respect of any share. It is well settled that partition is a severance of joint status; all that is necessary to constitute a partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severally; such an intention may be expressed by serving a notice on the other coparceners. (See Sec.325 of Mullas Hindu Law, 12th Edition at page 494). It is also well settled that though a wife cannot herself demand a petition, if a partition takes piace between her Husband and his sons, she is entitled to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband. Where at a partition between a father and his three sons, the wife was not allotted a share, it was held that she was entitled to reopen the partition, there being no waiver merely by her not asking for a share. (See Sec.315 of Mullas book at page 485). The father of a joint family has the power to divide the family property at any moment of his life, provided he gives his sons equal shares with himself, and if he does so, the effect in law is not only a separation of the father from the sons, but a separation of the sons inter se; the consent of the sons is not necessary for the exercise of that power. (See Sec.323 of Mullas book at page 493). In view of these well settled principles of Hindu law, the notice dated the 27th March, 1950 given by Mahabir to his two sens amounts to severance of the joint status of the family or partition; and in such a partition Muni Kuer became entitled to one-fourth share. (See Sec.323 of Mullas book at page 493). In view of these well settled principles of Hindu law, the notice dated the 27th March, 1950 given by Mahabir to his two sens amounts to severance of the joint status of the family or partition; and in such a partition Muni Kuer became entitled to one-fourth share. 17. Now, the question is whether this right of Munl Kuer is equivalent to a right that she might be entitled to by a preliminary decree in a suit for partition between Mahabir and his sons. The answer to the question is mani Testly in tne affirmative and, therefore, the principles laid down in the Supreme Court decision would apply. Hence, though, before the commencement of the Hindu Succession Act, Muni Kuer held the one-fourth share as a property inherited by a woman (see the Privy Council decision in Debi Mangal Prasad V/s. Mahadeo Prasad Singh, 39 Ind App 121 (PC) ), after the commencement of the said Act she became the absolute owner of this share under Sec.14 of the Act. Thus, after March 1950, the shares of the members of the family in the ancestral property were Mahabir-one-fourth, Muni Kuer-one-fourth, Sheodhar-one-fourth and Jagdhra-one-fourth. 18. Subsequent to the notice, Mahabir made a gift of the properties to Sheodhar through the deed dated 18-1-1951; and this gift legally operated in respect of Mahabirs exclusive interest in Raghubirs esitate as well as in respect of his one-fourth share in the ancestral property. 19. In view of the foregoing discussions, the plaintiffs, that is, Jagdhar and his sons, are entitled to one-fourth share in the ancastral property of Mahabir. 20. In the plaint of the present suit, the property comprised in Raghubirs estate and the ancestral property of Mahabir are not separately mentioned. The ancestral property can, however, be found out by omitting the property comprised in Raghubirs estate (which is described in the pJaint, Ext. 1, of Title Suit No. 80 of 1932, read with the Judgment, Ext. 9, of that suit) from the property described in the schedule to the plaint of the present suit 21. In the result, the plaintiffs are entitled to a declaration of their title to one-fourth share of the ancestral property of Mahabir and partition of that share by metes and bounds. 9, of that suit) from the property described in the schedule to the plaint of the present suit 21. In the result, the plaintiffs are entitled to a declaration of their title to one-fourth share of the ancestral property of Mahabir and partition of that share by metes and bounds. The suit shall be decreed in these terms in part; but the decree will be in respect of the immovable properties only with mesne profits, because the claim for movables has been disallowed by the Court below and its finding regarding the same has not been challenged in this Court. 22. There are certain zamindary properties included in the suit properties; but it was conceded at the bar that these properties axcept bakasht land and homesteads, if any, have vested in the State under the Bihar Land Reforms Act, 1950. Hence, compensation payable by the State in respect of the intermediary interests and the homesteads, if any, shali be partitioned. The bakasht land, if any, shall not, however, be partitioned, because the plaintiffs were admittedly dispossessed by the defendants of all the suit properties since the execution of the dead of gift dated the 18th January, 1951 (see paragraph 19 of the plaint). Under Sec. 6 of the Bihar Land Reforms Act, only such bakasht lands" as were in "khas possession" of a proprietor or tenure-holder on the date of vesting of the estate or tenure were saved and are deemed to have been settled by the State with the proprietor or tenure-holder. But a co-proprietor or cc-tenure-holder, who was not in khas possession of the bakasht land cannot take advantage of this provision, as held by the Supreme Court in Suraj Ahir V/s. Prithinath Singh, 1963 BLJR 1 at p. 5 : ( AIR 1963 SC 454 at p. 458). But a co-proprietor or cc-tenure-holder, who was not in khas possession of the bakasht land cannot take advantage of this provision, as held by the Supreme Court in Suraj Ahir V/s. Prithinath Singh, 1963 BLJR 1 at p. 5 : ( AIR 1963 SC 454 at p. 458). Their Lordships, while dealing With this question observed as follows: "Reliance was placed by the High Court on the case reported as Brij Nandart Singh V/s. Jamuna Prasad, AIR 1958 Pat 589 , for the construction put on the expression khas possession to include subsisting title to possession as well, and therefore for holding that any proprietor, whose right to get khas possession of the land is not barred by any provision of law, will have a right to recover possession and that the State of Bihar shall treat him as a raiyat with occupancy right and not as a trespasser. We do not agree with this view when the definition of khas possession means the possession of a proprietor or tenure-holder either by cultivating such land himself within his own stock or by Ms own servants or by hired labour or with hired stock. The mere fact that a proprietor had a subsisting title to possession over certain land on the date of vesting would not make that land under his khas possession." As the estates or tenures in suit vested in the State under the said Act long after Janirary, 1951, the plaintiffs who were not in khas possession of such bakasht lands on the date of vesting, had no title to the same on that date; and the defendants, who were in khas possession of the said bakasht land on the date of vesting, became raiyats of the same with occupancy right on that date. 23 Parties will bear their respective costs throughout up to this stage. Partition shall be effected by metes and bounds through a pleader commissioner to be appointed in due course. Parties will bear the costs of the final decree, according to their shares. The appeal is, therefore, allowed in part in the terms indicated above.