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2009 DIGILAW 230 (PAT)

Raj Kishore Mahto v. Mt. Rohni Devi

2009-02-10

SHEEMA ALI KHAN

body2009
JUDGEMENT SHEEMA ALI KHAN, J. 1. This First Appeal arises out of a Partition Suit No. 19 of 1974. The defendants who are the appellants have filed this appeal against the judgment dated 30th June, 1977 passed by the Subordinate Judge, Biharsharif at Nalanda. 2. The plaintiff-respondent filed a partition suit claiming share of her deceased husband Chhotu Mahto. The plaintiffs case is that Ram Dayal Mahto was the common ancestor who had a son Naurangi Mahto who was recorded in the survey records of rights as raiyat of the schedule 1 lands mentioned in the plaint. Naurangi Mahto died leaving behind five sons Dular Mahto, Sita Mahto, Siri Mahto, Tori Mahto and Chhotu Mahto. Dular Mahto died in the state of jointness leaving behind his son Gopi Mahto who also died in 1953 in the state of jointness leaving beind one son and a widow, who are defendants No. 3 and 4 in this case. Sita Mahto died issueless in the state of jointness more than 25 years ago. His share of the properties came in possession of the other surviving coparcener by survivorship. Tori Mahto who is defendant no. 2 also had no successor as he remained unmarried. Chhotu Mahto died leaving behind his widow Keoli Devi (plaintiff) in the year 1945. It is the case of the plaintiff that she became a widow in the state of jointness with the members of the joint family therefore, she is entitled to the share of her husband Chhotu Mahto under the Hindu Womens Right to Property Act, 1937 and she becomes an absolute owner of the properties under the Hindu Succession Act of 1956. In order to establish her claim of partition, the plaintiff has pleaded that she was born in the year 1928 and was married to Chhotu Mahto in the year 1943 and her Roksati was performed in the year 1944 and thereafter she lived with her husband at village Kutlupur. It is her specific case that Chhotu Mahto died one year after Roksati in the year 1945. The joint family looked after her till the time Dular Mahto, who was the Karta of the joint family, was alive, but after his death she was neglected, and ultimately her brother Bulakan Mahto took compassion of her and she began to live with him. The joint family looked after her till the time Dular Mahto, who was the Karta of the joint family, was alive, but after his death she was neglected, and ultimately her brother Bulakan Mahto took compassion of her and she began to live with him. The plaintiff demanded partition of 1/4 share of the joint family which was refused by the members of the family and ultimately she had to file this suit for partition. 3. Two sets of written statements have been filed. One set of written statement has been filed by the defendants no. 2 to 4 and the other by defendants no. 1, 5 and 6. The defendants Dular Mahto, Sita Mahto, Siri Mahto and Tori Mahto and their heirs do not have any conflict of interest as far as their respective cases are concerned. The defendants also admit the correctness of schedule 1 which is a list of the land beJonging to the family except that they say that Khata No. 258 instead of 248 has been wrongly mentioned and Tauzi No. 10312 in the schedule of the plaint has also been wrongly mentioned instead of 10314 with respect to, Khata No. 302. It is their case that it has been gifted to the family Yajman i.e. the Brahmin (priest) who was attached to the family and as such it is said that Khata No. 302 as wrongly been included in the schedule of the plaint. The plaintiff has accepted the mistakes made in the plaint in schedule 1 and has also accepted that Khata No. 302 has been gifted to the family Brahmin (priest). The genealogical table is also accepted by the defendant. 4. The defendants case is that the plaintiff has no cause of action as Chhotu Mahto pre-deceased is father Naurangi Mahto who had died in 1935 leaving behind his four sons. Gopu Mahto died in the year 1947, and Sita Mahto died before Gopi Mahto. All of them died in a state of jointness. It is the specific case of the defnednats that Chhotu Mahto husband of the plaintiff died in the year 1931 due to fever and the entire property in the suit came in the joint possession of Dular Mahto, Siri Mahto and Tori Mahto by rule of survivorship. 5. The further case of the defendants is that there was a partition amongst the three brothers. 5. The further case of the defendants is that there was a partition amongst the three brothers. Siri Mahto partitioned from Dular Mahto and Tori Mahto. The laser two remained joint until a partition took place between them in the year 1968. The partition in 1968 took place between Tori Mahto on one hand and Most. Batni widow of Gopi Mahto, son of Dular Mahto and Raj Kishore Prasad son of Gopi Mahto. It is said that Tori Mahto executed a registered deed of gift on 24.3.1972 in favour of Raj Kishore Prasad. Thus each of the three brothers separated. 6. The defendants 2 to 4 in the written statements have given details of the land that were partitioned and came in their share which is described in schedule 1 of the written statement. These defendants after the partition had exchanged some lands with each other and have also purchased separate properties which have been described in schedule 2 of the written statement. These defendants denied the plaintiffs case and have specifically stated that the date of marriage and Roksati of the plaintiff given in the plaint is incorrect. These defendants admitted that the plaintiff is entitled to maintenance and she is actually being maintained by the defendants and the suit has been brought at the instance and in collusion with the brother of the plaintiff. 7. The defendants 5 and 6 in their written statements have also pleaded that after partition Siri Mahto has got his name registered in the records of right and has been paying rent to the Zamindar. Zamindari receipts in the name of other co-sharers were granted and the parties remained in possession accordingly and were granted separate Choukidari receipts. The case of the defendant is that Siri Mahto had also got lands in Mauza Mohiuddinpur Zenaro which were also the subject matter at partition between Dular Mahto and Tori Mahto. It is said that he has purchased some land at Kultupur from Most. Sohago Kuer wife of, Ramkeshwar Mahto, over which the other defendants have no concern. The lands purchased by Siri Mahto have been described in schedule 3 of the written statement. 8. Before examining the issues that arise in this case and the merits of the case it would be relevant to bring certain facts which are important in deciding this appeal. 9. The lands purchased by Siri Mahto have been described in schedule 3 of the written statement. 8. Before examining the issues that arise in this case and the merits of the case it would be relevant to bring certain facts which are important in deciding this appeal. 9. During the pendency of the First Appeal the main contesting respondent i.e. Most. Keoli Devi respondent no. 1 died issueless on 17.11.1986. An application was filed under Order 22 Rule 10 to implead Ramashish Prasad as a party as it is the case of Ramashish Prasad that he has an interest in the suit by virtue of a gift deed executed by the plaintiff, Ramashish Prasad is the son of Bulakan Mahto. It may be recalled that Bulakan Mahto is the brother of Keoli Devi (plaintiff). In the said petition it has been mentioned that Keoli Devi respondent no. 1 had executed a deed of gift on 18.9.1986 in favour of the Ramashish Prasad and on the basis of the alleged gift deed dated 18.9.1986 Ramashish Prasad has prayed that he should be substituted in place of Keoli Devi. This Court while considering the petitioner for substitution has allowed the petition under Order 22 Rule 10 passed the following Order: "Substitution petition is accordingly allowed. The petition under Order 22 Rule 10 filed on behalf of Ramashish Prasad is also allowed and he is impleaded as respondent in this application. It is, however, made it clear that by this order no right is created in favour of the impleaded respondent." 10. It would also be relevant to bring on record the application filed under Order 41 Rule 27 to adduce additional evidence. This application was allowed on 24.6.1994. By the said application the substituted plaintiff Ramashish Prasad sought to bring on record the four sets of sale proclamations of the years 1948 and 1949 purportedly to show that the plaintiff Keoli Devi has been accepted as a representative of her husband Chhotu Mahto. 11. Keeping in view the intervening facts I shall commence to examine the case of the parties. 11. Keeping in view the intervening facts I shall commence to examine the case of the parties. The Trial Court framed an issue which reads "Did Chhotu Mahto the husband of the plaintiff died before coming into force of the Hindu Womens Right of Property Act, 1937 or after that?" besides which the court below framed other issues which relate to the unity of title and possession of the parties, and whether the plaintiff has a right to get the lands partitioned. The issue in italics according to the counsel for the appellants was referred by the Court and is contrary to the pleadings of the plaintiff. 12. In my view the first and most important issue is whether the plaintiff has been able to prove her case which is whether her husband died in 1945? Or even if it is accepted that the issue may be recorded by saying as the lower Court did whether Chhotu Mahto died after 1937? 13. The court below has aDproached the case by examining the evidence and documents of the defendant without really discussing or examining whether the plaintiff has led evidence to show that her husband died after 1937 or as specifically pleaded by her in the year 1945. The Trial Court has decreed the suit on the basis of Exhibit J which is erroneous approach to the case. I, however, think it necessary to pursue and discuss the evidence led by the plaintiff with respect to her case as made out in the plaint. 14. Keoli Devi has examined herself as P.W. 1. In the chief the plaintiff has stated that she was married at the age of 15 and she came to her husbands house at the age of 16 and became widow one year thereafter. In her cross-examination, she says that Dular Mahto was the Karta of the family when she came to her husbands house and states that Dular Mahto was 60 years old at that time. She further states that her husband was about the same age as she was and was a student and soon after her marriage he gave up his study and died 6-12 months later. She further states that her husband was about the same age as she was and was a student and soon after her marriage he gave up his study and died 6-12 months later. At paragraph 8 she contradicts her own statement by saying that Sita Mahto died two years before she got married and she did not see him when she came to her husbands house, but in the same breath she had stated that she had met Sita Mahto when she came to her Sasural. At paragraph 11 the plaintiff says . that she was never given her share after death of her husband, she was only maintained by her husbands family and at present she is living with her brother after the filing of the partition suit. At paragraph 12 this witness says that Tori Mahto performed the last rights of her husband and states that her husband was about 25 years of age when he died. She further states that Tori Mahto was 5 to 10 years older than her husband. From the evidence above, it is quite clear that the plaintiff has contradicted her own case as stated in the chief that she was 15 to 16 years at the time of her marriage and her husband was also 15 to 16 years old and has contradicted the statement by saying that her husband died at the age of 25. "She has also accepted that after her husbands death till the time of filing of the partition suit she was maintained by her husbands family and was provided food and her other needs by the family." The evidence of the plaintiff is not. borne out by other witnesses examined on her behalf. In fact I find that P.W. 4 states that Chhotu Mahto died at the age of 32. P.W. 5 who is the uncle of the plaintiff says that his niece was married in the year 1943 and became a widow in the year 1945. In the cross-examination he does not remember his own year of marriage and cannot even state the year or date of giving evidence in Court as such this witness is completely unbelievable. P.W. 6 claims to have attended the marriage of the plaintiff. In his cross-examination he has stated that he cannot recall in which year the marriage took place. In the cross-examination he does not remember his own year of marriage and cannot even state the year or date of giving evidence in Court as such this witness is completely unbelievable. P.W. 6 claims to have attended the marriage of the plaintiff. In his cross-examination he has stated that he cannot recall in which year the marriage took place. According to him his father died sometime in the year 1958-59 which was about 10 to 12 years after the marriage of Keoli Devi. This witness is hardly reliable in view of the fact that he is not directly concerned with the affairs of the family and he has admitted that he cannot recall the year of the marriage of the plaintiff. P.W. 7 demolishes the case of the plaintiff as according to him Chhotu Mahto was 10 years old in the year 1960. He has further stated that he lives in Kolkata and as such this witness also does not support the plaintiffs case. P.W. 9 who is the Purohit in the village claims that the marriage of Chhotu Mahto took place in the year 1942 which contradicts the plaintiffs stand that she was married in the year 1944. Similarly D.W, 10 also states that the marriage took place in the year 1942 and is confused regarding the age of Chhotu Mahto as according to him Chhotu Mahto got married at the age of 10 or 12 years. P.Ws. 11 and 13 are hearsay witnesses. On perusal of the evidence aforesaid it would be quite clear that the plaintiff has not been able to show that her husband died in the year 1945 or even after 1937. 15. It would be important to examine the evidence of the defendants with regard to the date of death of Chhotu Mahto. D.W .1 Ram Pyare Mahto is mainly a witness on partition but he has also stated that the plaintiff lived sometimes in the house of Dular Mahto and sometimes with the other brothers. Regarding the date of death he says that he has heard from his father that Chhotu had died one year after the great earthquake. D.W. 1 Bhatni Devi examined on behalf of defendants, 2, 3, 4 and 7 is the wife of defendant no. 4 i.e. Gopi Mahto. Regarding the date of death he says that he has heard from his father that Chhotu had died one year after the great earthquake. D.W. 1 Bhatni Devi examined on behalf of defendants, 2, 3, 4 and 7 is the wife of defendant no. 4 i.e. Gopi Mahto. She has stated in her evidence that Chhotu Mahto died before Naurangi Mahto and has stated in fact Chhotu Mahto died before she got married. She has also given evidence on partition between the brothers which should be discussed later. This witness has specifically stated that Tori Mahto is very ill and therefore, he has not come to give evidence in this case. According to this witness, the plaintiff used to live with any one of the family members, with whomever she pleased. She has also stated that plaintiff used to live with her or sometimes with Tori Mahto and would also often visit her brothers house. Siri Mahto brother of Chhotu Mahto has also come forward to give evidence and has stated that Chhotu Mahto died 45-46 years prior to giving the evidence which has been recorded on 27.6.1977. This witness supported his case. In his cross-examination he has supported his examination in chief by saying at paragraph 8 that Chhotu Mahto probably died at the age of 18 to 19 years. He claims that he was 25 years old when Naurangi died. The defendant witnesses have supported the case of the defendant by stating that Chhotu Mahto died just after the great earthquake. The main witnesses who were examined with respect to the death of Chhotu Mahto are Bhatni Devi and Gopi Mahto who are family members and closely related to Chhotu Mahto and as such their evidence cannot be disregarded. Other witnesses have stated that they had heard about Chhotus death from their fathers or in the village and have only indirectly support the date of death of Chhotu Mahto as being after the great earthquake. Judicial notice can be taken of the fact that the earthquake happened in January, 1934. 16. The Court below while dealing with the issue regarding the date of death of Chhotu Mahto has stated that the evidence has no meaning as both sides have ied evidence to support their own case. In fact the Court below has stated that the date of death of Chhotu Mahto is only of academic importance. 16. The Court below while dealing with the issue regarding the date of death of Chhotu Mahto has stated that the evidence has no meaning as both sides have ied evidence to support their own case. In fact the Court below has stated that the date of death of Chhotu Mahto is only of academic importance. I am afraid that I cannot accept the reasoning of the Trial Court. 17. Let us examine the documentary evidence. The Court has further referred to documents brought on record by the defendants to show that Chhotu Mahto died in the year 1931. The documents namely Hathchitha of the Choukidar (Ext. A), the suit register extract (Ext. K.) and the Mossana (i.e. plaints) of that suit (Ext. J) have been heavily criticized by the Trial Court and the Trial Court has rejected the case of the defendant regarding the death of Chhotu Mahto on the basis of these documents, as according to the Court below Ext. J demolishes the case of the defendant completely. 18. I shall now deal with each of these exhibits. The Hathchitha of the Choukidar which is a document showing the date of death as maintained by the Choukidar of the village which is Ext. A and has been proved by D.W. 4 with objection. D.W. 4 Chandeshwar Paswan is the Choukidar of the village. The Hathchitha was maintained by his father and he produced the document to show that Chhotu Mahto died on 28.8.1931. It may be mentioned here that this document is very old. The paper on which it is written justifies the age of the document which is more than 30 years, The document is in the "Kaithi" script. The papers have become worn out and are stitched together which disclose that it is indeed a very old document. The Court below has rejected this document on the ground that the Choukidar who produced this document has stated that his father the erstwhile Choukidar could not read and write. 19. The Court below did not believe the witness who produced the document. I have my reservations on the findings of the Trial Court, after examining the documents. There was no occasion for Choukidar to get prepared a document in the year 1931 in the hope and believe that it would help the defendants in the furture. 19. The Court below did not believe the witness who produced the document. I have my reservations on the findings of the Trial Court, after examining the documents. There was no occasion for Choukidar to get prepared a document in the year 1931 in the hope and believe that it would help the defendants in the furture. The objection of the Court that the Choukidar could not read & write is not reaily valid as in the old days there was a "Munshi who would write on behalf of the entire village. 20. The next document (Ext.-K) which is certified copy of suit register from the Court of Munsif, Bihar. It appears that a suit was filed on 16.9.1941, by the plaintiff landlord Md. Haroon. The Court has accepted the genuineness of this document and ruled out the objections of the plaintiffs. The Mosanna (Ext.-J) which is really the plaint shows that Md. Haroon is the plaintiff whereas the defendants have been described as Dular Mahto, Sita Mahto, Siri Mahto, Tori Mahto and Most. Keoli Devi original plaintiff. This Court has interpreted this Ext.-J which was dated 16.9.1941 to hold that the defendants have treated the plaintiff to be a co-owner in the suit and as such this Court has held that the defendants have recognized her as a coparcener and this document itself would entitle the plaintiff to partition of the family properties. While discussing Ext.J, I would also like to refer to the documents which have been brought by way of additional evidence which is an attachments certificate to be decree in the rent suit arising out of this suit for recovery of rent. Argument has been made on behalf of the plaintiff, rather the substituted heir of the plaintiff to show that this document proves that the defendants had treated the plaintiff to be a coparcener in the joint family property. The counsel for the appellants have contended that Ext.J has been filed by the ex-landlord who happens to be a Muslim and he has made all the surviving members of Naurangi Mahtos family as party in the suit and the exlandlord is not expected to know the status within the family with respect to their claims in the joint family property. After considering the rival contentions and the reasonings given by the Court below I find and hold that Ext.J or the additional evidence filed on behalf of Ramashish Prasad does not give a right to the plaintiff in the joint family property. I may also mention here that no written statement to deny or support the claim of rent or any other fact was made by the defendants or anybody else and as such Ext.J cannot confer any right on Keoli Devi by virtue of her being made party alongwith the surviving members of Naurangi Mahtos family. This document Ext.J has been brought on record merely to show that the Mosanna is of the year 1941 which indicates that Chhotu Mahto had died before 1941. Surprisingly the Court has based its finding on Ext.J which has been filed with objection to say that Chhotu Mahto died after 1937 which in my opinion could not have been done by the Trial Court for the reasons aforesaid. 21. Having considered the oral and documentary evidence produced by the plaintiff and defendant I find that I cannot agree with reasoning of the Court below. Firstly, it is not correctly stated that plaintiff has supported her case by leading oral evidence to support her case. In fact, she has not been able to prove that her husband died after 1937. Secondly, on the contrary the defendants witness have been able to show that Chhotu Mahto died before 1937 and that he predeceased his father. Regarding the case of the defendants that Chhotu predeceased his father, the plaintiff is virtually silent and even while cross- examining the defendants witness she would have tried to dislodge this part of their case. I, therefore, find that the plaintiff has failed to prove her case in order to obtain a decree in her favour. 22. The question therefore, arises that what would be rights of Keoli Devi widow of Chhotu Mahto under the Hindu Law. The case of the defendant is that Chhotu Mahto the predeceased his father Naurangi Mahto. The Supreme Court has held in Vaddeboyina Tulasamma & Ors. V/s. Vaddeboyina Sesha Reddis case reported in A.I.R. 1977 S.C. 1944 that even before the enactment of the Hindu Succession Act, 1937 a widow had the right in the property inasmuch as she was entitled to maintenance. The Supreme Court has held in Vaddeboyina Tulasamma & Ors. V/s. Vaddeboyina Sesha Reddis case reported in A.I.R. 1977 S.C. 1944 that even before the enactment of the Hindu Succession Act, 1937 a widow had the right in the property inasmuch as she was entitled to maintenance. The evidence laid by the plaintiffs in this point is that she was being maintained as a family member and till Dular Mahto was the Karta of the family and after his death she had to face problems. From the evidence of the plaintiff herself, it is quite clear that the plaintiff was never allocated any particular share in the joint family properties exclusively for her own use, for the purpose of maintaining herself i.e. to say that she never came in possession of a particular portion of land of joint family property. Had the plaintiff come in possession of the share of her husbands property then perhaps she may have had a right in the property if she was dispossessed of such property but at no time as the plaintiff has been able to show that she was exclusively in possession of any of the property. The evidence is contrary inasmuch as it is apparent that Chhotu Mahto predeceased his father and as such according to the Hindu Law the plaintiff would be only entitled to maintenance. This legal proposition has been supported the case of Raghubar Singh & Ors. V/s. Gulab Singh & Ors. reported in A.I.R. 1998 S.C. 2401 wherein it has been held supporting the principles laid down in AIR 1977 S.C. 1944 that the right of maintenance of a Hindu family flows from the social and temporal relationship between husband and the wife and the right in the case of a widow is a "pre-existing right," which existed under the Shastri Hindu Law before passing of the 1937 and 1946 Act. Those acts merely recognized the position as was existing under the Shastri Hindu Law and gave it "statutory" backing where a hindu widow is in possession of the property of her husband she has a right to be maintained out of it and she is entitled to retain the possession of that property in lieu of her right to maintenance. Those acts merely recognized the position as was existing under the Shastri Hindu Law and gave it "statutory" backing where a hindu widow is in possession of the property of her husband she has a right to be maintained out of it and she is entitled to retain the possession of that property in lieu of her right to maintenance. The facts of the aforesaid case would reveal that the widow had come into possession of her husbands property by some instrument or the other and continued to remain in possession thereof. The factual position in the instant case is different. 23. The defendants in order to support their case had pleaded that there was a partition between Dular Mahto, Tori Mahto and Siri Mahto. Dular Mahto and Tori Mahto remained joint whereas Siri Mahto separated from them and he began to live separately from Duiar Mahto and Tori Mahto. Later in 1968 there was a partition between Tori Mahto and the heirs of Dular Mahto, In 1972 Tori Mahto executed a deed of gift in favour of grandson of Dular Mahto. There are several documents to show that the members of the family purchased lands, mortgaged lands and sold lands. These exhibits have been filed on behalf of the defendant to show that they have acted upon the aforesaid partition between them and they dealt separately with the properties in question. The defendants have also filed rent receipts which are Ext.F series granted by the Ex-zamindar from the year 1948 onwards. The rent receipts have been rejected on the ground that such documents can be easily be manufactured. None of the parties have argued that the rent receipts were manufactured and the reasoning of Trial Court is thus rejected. The Court below has also rejected the rent receipt on the ground that the partition took place in 1946 and the rent receipts are from 1948 and on these facts the Court below has presumed that in fact the partition did not take place between the sons of Naurangi Mahto. Rejection of the rent receipts which have been produced in 1948 is not a correct approach, for the reason that there the receipts are old and it is no ones case that the receipts were manufactured. 24. Evidence with respect to partition has also been adduced. Rejection of the rent receipts which have been produced in 1948 is not a correct approach, for the reason that there the receipts are old and it is no ones case that the receipts were manufactured. 24. Evidence with respect to partition has also been adduced. D.W. 1 Ram Pyare Mahto, Bhatni Devi examined on behalf of some defendants Siri Mahto D.W. 3 are witnesses with respect to partition. Whereas Bhatni Devi is the only witness who supports the case of partition the other witnesses say that they heard that the brothers had partitioned their properties and are witness to the fact that they live separately. According to D.W. 1 Ram Pyare Mahto D.W. 2 Siri Mahto they are hearsay witnesses but at the same time they had stated that the family members have separated and are living separately and that Chhotu Mahtos wife used to live sometimes with Tori Mahto and sometimes with his father Siri Mahto. Because the partition did not take place in the presence of these witnesses, the Court has rejected their evidence altogether. The other witnesses are with respect to the different deeds which have been executed by the defendants in their individual capacity. The Court has given much importance to the fact that the defendants did not examine Raj Kishore and Tori Mahto. D.W. 1 has explained that Tori Mahto could not come to the Court because he was very ill. The Court had disbelieved Bhatni Devi who is defendant no. 4 as she has not been able to give details regarding the land. D,W. 1 being a lady was not expected to be directly concerned with the management of the lands in question and, therefore, to disbelieve her on this ground alone would not be justifiable. The witnesses that have been examined by the defendant are not hearsay witnesses involved with the purchase, mortgage etc. of the suit lands. These witnesses have been examined for the reason stated above i.e. to show that the defendants have been acting in dealing with their respective shares as per the partition of 1946 and 1968. The court below had rejected all the documents for another reason. According to the Trial Court the documents with respect to sale or the deed executed by Tori Mahto in favour of Raj. The court below had rejected all the documents for another reason. According to the Trial Court the documents with respect to sale or the deed executed by Tori Mahto in favour of Raj. Kishore, or the mortgage deeds do not mention that the parties were dealing with the properties in question as these properties had fallen in their portion due to a family partition. There is no need to mention this fact while dealing with the third party or for that matter while executing a deed of gift cannot by itself be a ground for holding that there was no partition between the defendants with respect to the suit properties. 25. The case of the plaintiff is that her husband died in 1945. The reason for accepting her claim is Ext. J which in my view as stated aforesaid could not have been a ground for holding that Chhotu Mahto died after 1937. It is well settled law that the plaintiff has to prove his/her case and on perusal of the evidence of the plaintiff which I have discussed in some detail I find that she has not been able to prove that her husband died in 1945. 26. Rather the case of the defendants that Chhotu Mahto predeceased his father at the time of great earthquake is proved by the evidence of defendants witness. This suit has been filed some time in the year 1974. I cannot accept the explanation given by the plaintiff that she filed the suit after so many years because she demanded a partition after 29 years after her husbands death. This creates a grave doubt regarding her claim that her husband died after 1937. It appears that she was living confortably with her husbands family and it is only when she went to visit her brother that the suit has been filed. 27. Learned counsel appearing on behalf of the appellant has submitted that in fact this appeal is not maintainable as the defendant Keoli Devi has died during the pendency of the First Appeal. It has been submitted that Ramashish Prasad the nephew of Keoli Devi is claiming the suit lands on the basis of a deed of gift executed by Keoli Devi in his favour. It has been submitted that Ramashish Prasad the nephew of Keoli Devi is claiming the suit lands on the basis of a deed of gift executed by Keoli Devi in his favour. While allowing Ramashish Prasad to be substituted in place of Keoli Devi stated aforesaid this Court has already held that no right would be created in favour of the impleaded respondent. As such I find that in fact apart from the fact that the respondent could defend the order on behalf of the donee he has no right or claim in this First Appeal. 28. Thus on the basis of the law laid down in Talsaammas case (supra) and the present case the key word is that the widow should be in specific portion of joint family possession of lands. From the evidence in this case it is clear that Keoli Devi never came into possession of any part of the land but was looked after by the family and even after partition amongst the brothers of her husband, she was maintained by one or the other brother according to her convenience. 29. As such this Court finds that the plaintiff never came in possession of the joint family property and was maintained by the family members her husbands family and her claim for partition has to be rejected for the reasons stated in the judgment. 30. In the result the appeal is allowed and the suit of the plaintiff is dismissed. No order as to costs.