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2002 DIGILAW 986 (PAT)

Shanti Devi v. Kusum Devi

2002-09-11

RADHA MOHAN PRASAD

body2002
Judgment 1. This second appeal is directed against the judgment of affirmance passed in Title Appeal No. 13 of 1998/3 of 1999 by 4th Additional District Judge, Nalanda. 2. The defendants are the appellants. The plaintiffs filed suit for partition of the suit property described in Schedule I, II & IV of the plaint by carving out half share by metes and bounds through the process of law. According to the case of the plaintiffs, one Chaturbhuj Mahto had three sons, namely, Ganauri Mahto, Horil Mahto and Jugal Mahto. Plaintiffs are the daughters of Jugal Mahto from his second wife and defendant no. 1 is wife and defendant no. 2 is daughter of Binod Kumar born from the second wife of Jugal Mahto. Binod Kumar died on 13.4.1987. Further case of the plaintiffs is that due to bad relation of Lachhia Devi, Second wife of Jugal Mahto with the defendants she lived together with the plaintiffs and subsequently she died on 2.11.1992. It is stated that private partition between the plaintiffs and the defendants was made on 15.11.1992 but during the course of Chakbandi before the Circle Officer, Rahui, defendant no. 1 refused to agree to sign thereon and on application in Chakbandi the said partition had not been enforced, and, thus, the present suit was filed by them. 3. Defendant no. 1, however, denied that the plaintiffs are daughters of Jugal Mahto by second wife and she admitted only that Binod Kumar is son of Lachhia Devi from the said Jugal Mahto. According to the defendants, the plaintiffs are daughters of Faltu Mahto, who is father-in-law of Loki Mahto, one of the brother of her father-in-law Jugal Mahto and due to the family annoyance the plaintiffs have been planted as daughters of Jugal Mahto by Loki Mahto son of Horil Mahto. 4. Both the courts after careful consideration of the entire evidence have concurrently held that the plaintiffs are daughters of Jugal Mahto and that they and defendant nos. 1 & 2 are legal heirs of Jugal Mahto as well as his wife Lachhia Devi. 4. Both the courts after careful consideration of the entire evidence have concurrently held that the plaintiffs are daughters of Jugal Mahto and that they and defendant nos. 1 & 2 are legal heirs of Jugal Mahto as well as his wife Lachhia Devi. The trial court decreed the suit regarding half share of the plaintiffs in the suit property as claimed and the lower appellate court on consideration of the evidence and the provisions of Hindu Succession Act held that the plaintiffs have 2/ 3rd share in the suit property described in Schedule III of the plaint, and that in absence of evidence regarding jointness of moveable property described in Schedule IV of the plaint the plaintiffs have no right of any partition in respect of the said property. Regarding dwelling house the lower appellate court directed that at the time of preparation of final decree, the court below shall also determine the dwelling house and if finds any dwelling house then the plaintiffs have only right to live in it, but, that shall not be partitioned by metes and bounds. 5. Learned counsel for the defendant-appellants has contended that the lower appellate court has erred in law in granting 2/3rd share to the plaintiffs in the suit property for which they have not even claimed any relief. Learned counsel for the appellants has submitted that the lower appellate court cannot grant relief more than what is asked for by the plaintiffs in the suit. As such, according to the learned counsel, the judgment of the lower appellate court is liable to be set aside to the above extent. 6. I am unable to accept the submission of the learned counsel for the appellants. Order VII Rule 7 of the Code of Civil Procedure provides that every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. The same rule shall apply to any relief claimed by the defendant in his written statement. The same rule shall apply to any relief claimed by the defendant in his written statement. There cannot be any dispute that in view of the law settled the Court cannot grant relief to the plaintiff in a case for which there was no foundation in the pleadings and which the otherside was not called upon or had no opportunity to meet them. But, if there is foundation for such relief in the pleadings and otherwise had opportunity to meet them, the Court can grant such other relief as may think just to the same extent as if it had been asked for. 7. In the present case, there cannot be any doubt that the parties had full opportunity to present their case on the point of partition sought by the plaintiffs. The only dispute was as to whether the plaintiffs are the daughters from second wife of Jugal Mahto, namely Lachhia Devi or that they were the daughters of Faltu Mahto, who is father-in-law of Loki Mahto son of Horil Mahto, one of the brother of her father-in-law Jugal Mahto and due to family annoyance the plaintiffs have been planted as daughters of Jugal Mahto by Loki Mahto. The plaintiffs have succeeded in proving that they are daughters of Jugal Mahto from his second wife, and it is not in dispute that defendant no. 1 is the wife of Binod Kumar and defendant no. 2 is daughter of Binod Kumar son of Jugal Mahto from his second wife. It is also not in dispute that Lachhia Devi died on 2.11.1992 i.e. before filing of the suit. Thus, the only question remained to be considered was that under the provisions of Hindu Succession Act the plaintiffs are entitled for how much share which has been considered by the lower appellate court while granting 2/3rd share instead of half claimed by the plaintiffs and with this modification in the judgment and decree of the trial court the lower appellate court has dismissed the appeal filed by the defendant-appellants. According to Section 8 of the Hindu Succession Act, 1956 the property of a male Hindu dying intestate shall devolve firstly upon the heirs, being the relatives specified in Class I of the Schedule and the Schedule provides that son and daughter both are Class I heirs and, thus, entitled for equal share in the property of a person dying intestate. 8. 8. Under the above circumstances, I do not find any error in the impugned judgment warranting interference in second appeal. No other question muchless substantial question has been argued on behalf of the appellants. The appeal is, thus, dismissed.