Judgment:
P.K. Misra, J.
1. Defendants in a suit for partition have filed this appeal challenging the judgment of the Subordinate Judge, Deogarh, passing a preliminary decree for partition and giving half-share jointly to the plaintiffs.
2. Lenti, the recorded owner, had two sons/namely Bhuban and Khaga. The dispute in this appeal is confined to the branch of Bhuban. Bhuban had three sons, namely Diga, Daya and Jhara. All of them are dead. Diga's son and two daughters are the plaintiffs. Lata (defendant No. 1) was the widow of Daya. Jhara, the third son of Bhuban left behind his widow Ichha (defendant No. 2) and daughter Parbati (defendant No. 3). According to the plaintiffs, in a partition in the year 1930-31, the disputed property representing the half interest of Bhuban, fell to the share of the three brothers, namely Diga, Daya and Jhara. Daya died in 1938 and it is alleged that sometime thereafter Lata re-married Jhara and as such was divested of her interest in the property. It is the further case of the plaintiffs that though the parties were living separately and amicably possessing lands 'according to convenience, there was no partition by metes and bounds. In 1956 some trouble started among the parties and subsequently the suit has been filed claiming half share in the property which had fallen to the share of the three brothers.
3. The three defendants have filed a joint written statement disputing the case of the plaintiffs. According to the defendants, Lata had not re-married Jhara after the death of Daya and as such continued to be the owner in respect of the share of Daya. Their further case is that there was a partition among the sons of Khaga as well as sons of Bhuban and one-sixth share in the entire property of Lenti was given to each of the three sons of Bhuban, namely Diga, Daya and Jhara. It is further asserted that Lata (defendant No. 1) has been in continuous possession of her property sought to be partitioned and has perfected her right, title and interest by adverse possession. On the aforesaid pleadings, the defendants have prayed for dismissal of the suit.
4. The Trial Court decreed the suit and directed for grant of half share to the three plaintiffs jointly on a finding that after the death of Daya, Lata had remarried Jhara and as such she was divested of the interest and on a further finding that there was no previous partition by metes and bounds. The Trial Court further found that the defendants had failed to prove the plea of adverse possession. The aforesaid judgment is under challenge in this appeal.
5. It is first contended that in view of the evidence on record, the Trial Court should have held that there was previous partition wherein the properties of Bhuban and Khaga were pertitioned and one-sixth share was given to Diga, Daya and Jhara each and the balance half of the properties was also similarly divided amongs the sons of Khaga. My attention was drawn to the evidence of PWs 1,2 and 4. PW 1, a co-villager of the parties/has stated in examination-in-chief that about 50 years back, Khaga had effected division of properties in two villages Kala and Lalaposi. He has further stated that after partition, Diga, Daya, Jhara continued to live jointly for 9 to 10 years. His evidence further discloses that the suit properties were never partitioned at any time. Though it is elicited in his evidence that the lands allotted to the share of Khaga were equally partitioned, from that it cannot be inferred that the lands which had fallen to the branch of Bhuban were also partitioned by metes and bounds. On the other hand, he has stated that there was no partition between the plaintiffs and Jhara at any time. Though in paragraph 21 of the cross-examination, he has stated that the suit properties have been divided into six shares, that evidently is a confused statement, inasmuch as it is nobody's case that the suit properties had been divided into six shares. This also becomes clear from his deposition in the next line to the effect:
'......Lata Bewa alongwith Jhara is in possession of the suit lands except 55 decimals. The rest portion of the lands might be about two acres.'
6. As seen from the plaint, the plaintiffs have sought for partition in respect of7.31 acres of land. A perusal of the entire evidence of PW I/indicates that he has got no idea about the matter and on the basis of his confused statement elicited in cross-examination, it would not be safe to come to a conclusion that the suit properties had been partitioned by metes and bounds. His evidence is more consistent with the plaintiffs story that the parties were amicably possessing lands according to their convenience.
7. The evidence of PW 2 only shows that after the death of Khaga and Bhuban, the sons were separated in mess and property. But from the aforesaid, it cannot be said that there had been, in fact, a partition by metes and bounds.
8. PW 4 is plaintiff No. 1. In his examination-in-chief he has stated that at first all the three brothers, namely Diga, Jhara and Daya were living jointly but later on they were separated in mess and property and were separately possessing lands according to convenience. He has also proved Khatian (Ext. 1), the Correction Slip (Ext. 1/1). Ext. 2 series and Ext. 3 series, the rent receipts. The aforesaid documents show that the properties were jointly recorded and jointly possessed omitting the name of Jhara. Though in cross-examination he has stated that the shares belonging to his father and brothers were divided into three shares, it is difficult to come to a conclusion that, in fact, there was a partition by metes and bounds. As a matter of fact, in die absence of any documentary evidence indicating completed partition by metes and bounds and in the absence of any categorical evidence from the side of the defendants regarding details of lands which had fallen to the shares of the parties in the alleged partition, it would be hazardous to come to a definite conclusion that all the lands had, in fact, been partitioned by metes and bounds. Of course, from the evidence on the side of the plaintiffs as well as that of the defendants, it is evident that the parties were amicably possessing different parcels of land according to convenience and were living separately and the lands described in Schedule of the written statement were under separate possession of defendant No. 1, but from the aforesaid fact no definite conclusion can be derived regarding partition by metes and bounds. Accordingly, I concur with the finding of the Court below that there was no partition by metes and bounds though parties were possessing separate parcels of land amicably. I further conclude that defendant No. 1 was possessing Scheduled lands described in the written statement.
9. The learned Counsel for the appellants then contended that in view of the provisions of Hindu Women's Right to Property Act and Hindu Succession Act, Lata became absolute owner of the property under her possession. He has further submitted that even assuming that there was no partition by metes and bounds among the three sons of Bhuban, it is evident that there was severance of joint status and as such on the death of Daya in 1938 Lata inherited his share and even assuming though not conceding that Lata re-married Jhara, she could not be divested of her interest in the property. The aforesaid submission of the learned Counsel for the appellants is not tenable. According to the plaintiff's case the alleged re-marriage took place in 1938 prior to introduction of Hindu Succession Act. Law is well-settled that a Hindu widow succeeding to the property of her husband under Hindu Women's Right to Property Act was succeeding as a limited owner for life having no absolute right or interest in the property. Section 2 of Hindu Widows Remarriage Act, 1856 provides as follows :
'2. Right of widow in deceased husband's property cease on her remarriage- All rights and interests which any widow may have in her deceased husband's property by way of maintenance, or by inheritance to her husband or to his lineal successors, or by virtue of any Will or testamentary disposition conferring upon her, without express permission to re-marry, only a limited interest in such property, with no power of alienating the same, shall upon her re-marriage cease and determine as if she had then died; and the next heirs of her deceased husband or other persons entitled to the property on her death, shall thereupon succeed to the same.'
10. From a bare reading of the section it is clear that a Hindu widow on her remarriage was divested of her limited interest in her deceased husband's property possessed by her by way of maintenance or succession to her husband. As per the provisions of Section 2, on the re-marriage of the widow her interest ceases as if she had died and the next heirs of the deceased husband succeed to the property. In other words, there is a civil death of the widow and the property reverts to the reversioners, that is to say, the next heirs of the deceased husband. Since there-marriage had allegedly take it place in 1938 prior to 1956. Section 14 of the Hindu Succession Act can have no application to such a case.
11. Faced with the aforesaid legal position, the learned Counsel for the appellants next challenged the finding of the Trial Court regarding re-marriage of Lata with Jhara. The appellants are on surer ground so far as this aspect is concerned. The evidence regarding the alleged re-marriage appears to be very meagre indeed. PW 1 who is the brother-in-law of plaintiff No. 1 does not seem to have much idea about the affairs of the family. At any rate, this bald statement that Lata married Jhara for the second time after death of her husband is not acceptable. In cross-examination, PW 1 has stated that Jhara was looking after Lata Bewa. If, in fact, Jhara had re-married Lata, there was no scope for making such a statement. PW 2 has stated that after the death of Daya, Lata Bewa married again. However, in cross-examination, he has been constrained to admit that he had not seen the actual marriage ceremony of Lata. Thus, his evidence does not advance the case of the plaintiffs regarding the alleged re-marriage of Lata. Similarly, though PW 3 claims that Jhara re-married Lata after the death of Daya, in cross-examination, he has candidly admitted that he was not present when the re-marriage of Lata took place. The evidence of PWs 2 and 3 does not satisfy the requirement of Section 50 of the Evidence Act, and, their evidence regarding alleged re-marriage of Lata in the absence of any direct knowledge does not inspire confidence. Plaintiff No. 1 himself examined as PW 4 has vaguely stated about the alleged re-marriage of Lata in 'Bandani' form. However, the vague assertion of plaintiff No. 1 himself in the absence of any other material cannot be accepted as proof of the alleged re-marriage in view of the specific denial on oath by defendant No.l who has been examined as DW 1. The denial evidence of DW 1 is corroborated by DW 1, an old man aged about 70 whose evidence has not been successfully shaken in cross-examination. It seems that the Trial Court without considering the entire evidence in right perspective has found about the alleged re-marriage of Lata. The said finding of the Trial Court cannot be sustained.
12. Once it is held that Lata had not re-married Jhara, the share available to each party is liable to be re-determined. The suit property representing the interest to Bhuban is liable to be divided into three shares represented by the three brothers, namely Diga, Daya and Jhara. The share of Diga is to be apportioned among the plaintiffs and the share of Jhara is to be divided between defendants 2 and 3 and the share of Daya is to be allotted to Lata defendant No. 1). Since defendant No. 1 was in possession of Scheduled property as described in her written statement, while effecting actual partition, the said property is to be allotted to her share as far as practicable and the properties under the possession of other parties are also similarly to be allotted to their respective shares.
13. The appeal is acordingly allowed in part to the extent indicated above. There shall be no order as to costs.