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1993 DIGILAW 139 (ORI)

DULI PRUSTY v. KETAKI PRUSTY

1993-05-11

S.C.MOHAPATRA

body1993
S. C. MOHAPATRA, J. ( 1 ) THIS is an appeal by plaintiffs in a suit for partition. ( 2 ) RELATIONSHIP of the parties is as follows:dasa (Dead) uchhab (dead)keshab (dead) - Ketaki (D-1) chaitan (dead) - Duli (P-1) padma (P-2)PROPERTY involved in the suit is of Dasa, the common ancestor. There was no partition in the family. On death of Dasa there is no dispute that Uchhab and Keshab would get half share each. Dispute is now relating to share of Keshab. ( 3 ) PLAINTIFF No. 1 is the widow of Chaitan, son of Keshab. Plaintiff No. 2 is their daughter. Defendant No. 1 is widow of Keshab. It is stated by plaintiff No. 1 that on death of Chaitan in 1968 there was dispute between mother-in-law and daughter-in-law as a result of which she had to leave her matrimonial house with her daughter who was unmarried then and was given in marriage by her without any assistance from the joint family. Accordingly, suit has been filed to carve out their interest in the property and deliver the same for their exclusive possession. ( 4 ) TRIAL court has passed a preliminary decree finding that Duli and Padma have half interest in property of Keshab and Ketaki has half interest therein. This is grievance of the plaintiffs in respect of properties where they claim to have 3/4th interest. ( 5 ) SYMPATHY would normally be with the daughter-in-law (plaintiff No. 1) who has a daughter. But interest of the mother-in-law is also to be taken care of. Sympathy cannot over-shadow the legal position. ( 6 ) KESHAB died in the year 1945 after coming into force of the Hindu Women's Right to Property Act, 1937. Right of limited interest in the joint family property is vested on Ketaki (defendant No. 1) after coming into force of 1937 Act. If the death of Keshab would have been prior to 1937, Ketaki would have been a maintenance-holder only. Thus, at the time of death of Keshab in 1945, if there would have been a partition at the instance of Chaitan, TK eshab, Ketaki and Chaitan would have got 1/3rd interest each because a mother is entitled to a share equal to a son in a suit for partition between father and son. While family continued joint, Chaitan died in the year 1968. While family continued joint, Chaitan died in the year 1968. In 1968, the Hindu Succession Act had come into force. Accordingly, limited interest of Ketaki in the year 1945 became her absolute property. On death of Keshab his interest would have been divided between Ketaki and Chaitan. Thus, after 1945, Ketaki has half share and Chaitan has half share in the interest of Keshab in joint family property. When Chaitan died in the year 1968, Ketaki would get no share in his interest since widow of Chaitan and daughter would have preferential interest in the property being Class-I heirs under the Hindu Succession Act. Claim of Duli (plaintiff No. 1) and Padma (plaintiff No. 2) that they have 3/4th interest cannot be accepted. Trial court has rightly rejected the same. Accordingly, there is no scope for interference with the decree passed by the trial court. ( 7 ) IN result, there is no merit in this appeal which is dismissed. However, in view of the relationship of parties, each party shall bear their own cost throughout. Appeal dismissed.