BHOLA MAHTO And ORS. vs CHOLA RAM MAHTO And ORS.
- Court
- Jharkhand High Court
2026:JHHC:14248
In THE HIGH COURT OF JHARKHAND AT RANCHI
S. A. No. 187 of 2008
1. Bhola Mahto, Son of Late Kashi Mahto
2. Kushal Mahto, Son of Late Kashi Mahto . (Substituted vide order
dated 15.06.2017)
2.a Most. Balo, wife of Kushal Mahto
2.b Chaman Mahto, Son of Kushal Mahto
2.c Gangadhar Mahto, Son of Kushal Mahto
2.d Durga Charan Mahto, Son of Kushal Mahto
All Resident of village- Happu, P.O. Toyar, P.S. Gola, District-
Ramgarh.
2.e Somri Devi, Wife of Teklal Mahto & Daughter of Kushal Mahto
R/o Village-Marangmarcha, P.O. Chittarpur, P.S. Rajrappa
(Ramgarh).
2.f Taro Devi, Wife of Sri Manoj Mahto & Daughter of Kushal
Mahto R/o Village Asurbandh, Tola Gurutanr, P.O. Porda, P.S.
Nimiaghat, District-Giridih.
3. Anand Mahto @ Anandlal Mahto, Son of Late Ledu Mahto
4. Parmeshwar Mahto, Son of Late Ledu Mahto
5. Sita Kumari, minor daughter of Late Ledu Mahto
6. Gudia, minor daughter of Late Ledu Mahto
Sl Nos. 5 and 6, represented through their natural guardian &
mother Dumari Mosomat.
7. Dumari Mosomat, widow of Late Ledu Mahto (Deleted vide order
dated 15.06.2017)
Sl Nos. 1 to 7, resident of Village Huppu, Post Office and Police
Station Gola, District Hazaribag (Now Ramgarh)
8. Riba Devi, wife of Jail Mahto and daughter of Late Kashi Mahto,
resident of Village Sangrampur, Post Office and Police Station
Gola, District Hazaribag (now Ramgarh)
9. Purani Devi, wife of Saheb Ram Mahto and daughter of Late Kashi
Mahto, resident of Village Banga Sarai, Post Office Honhe and
Police Station Ramgarh, District Hazaribag (now Ramgarh)
… … Plaintiffs/Appellants/Appellants
Versus
1. Chola Ram Mahto, Son of Late Kashi Mahto, resident of Village
Sangrampur, P.O. and P.S. Gola, District-Hazaribag (Substituted
vide order dated 25.06.2025)
1.a Most Dhuma Devi, widow of Late Chola Ram Mahto
1.b Tuleshwar Mahto, Son of Late Chola Ram Mahto
Both R/o: Village+P.O. Huppu, P.S.- Gola, District Ramgarh
1.c Jaleshwari Devi, Wife of Kuleshwar Mahto, D/o: Late Chola
Ram Mahto, Resident of Village-Bisa, P.O. Betulkala, P.S. Gola,
District-Ramgarh.
1.d Payaro Devi, Wife of Mehilal Mahto and D/o: Late Chola Ram
Mahto
Resident of Village- Saragdih, P.O. & P.S.-Barlanga, District-
Ramgarh.
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2026:JHHC:14248
1.e Lakhi Devi, Wife of Sambhu Mahto, D/o: Late Chola Ram
Mahto
Resident of Village-Sadma, P.O. & P.S. Petarbar, District-Bokaro.
1.f Saraswati Devi, Wife of Jitu Mahto and D/o: Late Chola Ram
Mahto
Resident of village-Jaradih, P.O. & P.S. Petarbar, District-Bokaro.
2. Gaura Devi, wife Jaipal Mahto and daughter of Late Kashi Mahto,
resident of Sangrampur, Post Office and Police Station Gola,
District Hazaribag (now Ramgarh)
3. Nakul Mahto, Son of Late Bigu Mahto, resident of Village Saragatu,
Post Office and Police Station Gola, District Hazaribag (now
Ramgarh).
… … Defendants/Respondents/Respondents
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellants : Mr. Sudhir Kumar Sharma, Advocate
: Mr. Nehru Mahto, Advocate
For the Respondents : Mr. Dr. Malay Kumar Laik, Sr. Advocate
: Ms. Manjusri Patra, Advocate
: Ms. Prerna Jhunjhunwala, Amicus
---
C.A.V. on 02.02.2026 Pronounced on 11.05.2026
1. This appeal has been filed by the plaintiffs against the judgment
and decree dated 16.06.2008 (decree signed on 24.06.2008) passed by
learned Additional District Judge Fast Track Court No.III, Hazaribag in
Title Appeal No.11 of 2004 affirming the judgment dated 20.02.2004
(decree signed on 05.03.2004) in Title Suit No. 29 of 1994 passed by
learned Sub-Judge-V, Hazaribag.
2. The suit was partly decreed. The partition was allowed with
respect to schedule B property and so far as schedule A property is
concerned, it was decreed to the extent of Khata No.15 and ½ of Khata
No.56. The suit was not decreed with respect to Khata No. 57 and half
of Khata No.56. The sale deed executed by Bauni Devi and Bilasho
Devi dated 11.04.1970 was held to be valid. The prayer to set-aside the
aforesaid sale deed was also held to be barred by limitation.
st
3. The learned 1 appellate court has affirmed the judgment passed
by the learned trial court.
4. This appeal was admitted for final hearing vide order dated
19.02.2020 on the following substantial question of law:-
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“Whether or not the appellate court, in view of admission of
D.W. Chola Ram Mahto about the death of Radha Mahto in
the year 1936 can dismiss the partition suit overlooking the
well settled principle of law that before the year 1937 or
before the year 1956, daughter and widow were not entitled
to the properties of their father or husband.”
Arguments of the appellants:-
5. The learned counsel for the appellants while referring to the
substantial question of law has submitted that admittedly Radha Mahto
had expired prior to 1956 and Sohagi Devi [widow of Radha Mahto]
had remarried her brother-in-law namely Kashi Mahto and it was the
case of the plaintiffs that they came in possession of Khata No. 15, 57
and 56 Kashi Mahto paid rent till 1938 and after vesting, zamabandi
was opened in his name and continued to pay rent.
6. The learned counsel for the appellants has further submitted that
admittedly Chola Ram Mahto and Gaura Devi, defendant no. 1 and 2
nd
respectively, were born from the 2 wife of Kashi Mahto namely
Sohagi Devi and Sohagi Devi died in the year 1950 and Kashi Mahto
died in the year 1966. Further, on 11.04.1970 the daughters of Radha
Mahto namely Bauni Devi and Bilasho Devi executed a sale deed in
favour of Chola Ram Mahto (defendant no.1) with respect to the entire
land of Khata No. 57, and the sale deed was under challenge in the suit.
It was the case of the plaintiffs that Bouni and Bilasho had not inherited
their father’s property as their father died prior to commencement of the
Hindu Succession Act, 1956.
7. It is further not in dispute that Khata No.15 was recorded
exclusively in the name of Kailu Mahto son of Amrit Mahto, Khata No.
57 was recorded exclusively in the name of Radha Mahto s/o Dukhi
Mahto s/o Amrit Mahto and further Khata No.56 was jointly recorded
in the name of Radha Mahto and Kailu Mahto.
8. At the time of death of Radha Mahto, his wife, Sohagi Devi was
alive along with two daughters and subsequently, she married Kashi
Mahto who was the son of Kailu Mahto and was the cousin brother of
Radha Mahto.
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9. Learned counsel for the appellants has submitted that since the
widow, Sohagi Devi, was alive, the property devolved upon her, but on
account of her remarriage she was deprived from the property of Radha
Mahto and consequently, the property of Radha Mahto would now
devolve upon the agnates of Radha Mahto. He has submitted that prior
to coming into force of Hindu Succession Act, 1956, the daughters had
no right to inherit the property. The learned counsel for the appellants
has submitted that under such circumstances the property with respect
to Khata No. 57 and ½ of Khata No. 56 would go to the legal heirs and
successors of Kashi Mahto (cousin of Radha Mahto) and so far as the
daughters of Radha Mahto are concerned, they have no right and could
not have executed the sale deed in the year 1970.
10. The learned counsel for the appellants has submitted that the
right with respect to the property of Radha Mahto first devolved upon
his widow Sohagi Devi and thereafter, upon divesting of the right of the
widow upon remarriage, the property would devolve only upon the
agnates of Radha Mahto and therefore, the two daughters of Radha
Mahto had no right over the property.
11. The learned counsel for the appellants has relied upon the
following judgements: -
a. judgment passed by Hon’ble Bombay High Court reported in
2024 SCC OnLine Bombay 3541 [Radhabai Balasaheb Shirke
through her heirs & LRs and others vs. Keshav Ramchandra
Jadhav and Others] and has submitted that it has been held that
a daughter could not acquire any right, either, limited or absolute,
by inheritance prior to coming into force of the Act of 1956, in
the property of her deceased father who died prior to 1956,
leaving behind him in addition to such daughter, his widow as
well.
b. judgment passed by Hon’ble Chhattisgarh High Court in S.A. No.
178 of 2014 [Smt. Ragmania Died through Lrs Kariman Das
vs. Jagmet and Others] which is reported in ( 2025) SCC OnLine
Chhattisgarh 10013 and has submitted that the legal position has
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been summarized in paragraph 29 of the said judgment wherein
it has been held that when a Hindu governed by Mitakshara Law
died before 1956, his separate property would completely
devolve upon his son and a female child could claim right in the
said property only in absence of male child. The learned counsel
for the appellants has submitted that since the widow was already
there therefore, the property could not have devolved upon the
daughters at all as the widow would have the right in preference
to the daughters and once the widow remarried, the entire
property will go to the agnates of her husband and not to the
daughters.
c. Judgment passed by Hon’ble Supreme Court reported in (2020)
14 SCC 436 [Arshnoor Singh vs. Harpal Kaur and Others] and
has referred paragraph 7.6 and has submitted that if the
succession opened prior to commencement of Hindu Succession
Act 1956, the parties would be governed by Mitakshara Law and
the property inherited by male Hindu from his parental male
ancestor shall be coparcenary property in his hand vis-a-vis his
male descendants up to three degrees below him. The nature of
the property will remain as coparcenary property even after the
commencement of Hindu Succession Act, 1956.
d. Judgment passed by the Hon’ble Supreme Court reported in
(1976) 4 SCC 674[Smt. Kasturi Devi vs. Deputy Director of
Consolidation and Others] and has submitted that a mother
cannot be divested of her interest in her son’s property even on
the ground of remarriage, but she would be divested from the
property of her husband only, in case of remarriage.
e. Judgment passed by Hon’ble Patna High Court reported in 1998
SCC OnLine Patna 517[Deoki Mallah vs. Surji Mallahain and
Others] and has referred paragraph No.14 and has submitted that
entry in revenue record will not lead to any presumption that the
property is a separate property. He has also submitted that
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2026:JHHC:14248
separate in mess and separate in cultivation does not imply
previous partition.
f. Judgment passed by Hon’ble Supreme Court in Civil Appeal No.
5415 of 2011[Shyam Narayan Prasad vs. Krishna Prasad and
Others] decided on 02.07.2018 and has referred paragraph 12 of
the said judgment and has submitted that law is settled that the
property inherited by male Hindu from his father, father’s father
or father’s father’s father is an ancestral property and the
essential feature of ancestral property according to Mitakshara
Law is that sons, grandsons and great grandsons of the person
who inherits it, acquire an interest and right attached to such
property at the time of his birth. The share which coparcener
obtains on partition of ancestral property is ancestral as regards
his male issue and after partition the property in the hands of son
will continue to be ancestral property and the natural or adopted
son of that son will take interest in it and is entitled to it by
survivorship.
Arguments of Amicus.
12. The learned Amicus has submitted that there is a finding that
there was previous partition between Kailu Mahto and Radha Mahto
which was admitted by plaintiff No.1, who was examined before the
court. The learned Amicus has further submitted that the property
involved in this case, considering the substantial question of law, will
be relatable to property in Khata No. 57 and ½ share of Khata No.56.
The learned Amicus has submitted that once the wife of Radha Mahto
remarried, she was to be treated as good as dead and the entire estate of
Radha Mahto, which devolved upon Sohagi Devi as his widow, ceased
to so exist as her property and consequently, the next in line, that is, the
daughters, would be entitled to the entire estate of Radha Mahto and
they had absolute right over the property and the property in Khata
No.57 was transferred by them to the defendant no.1 by the registered
sale deed challenged in the suit.
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13. The learned Amicus has referred to Hindu Widow’s Remarriage
Act 1856 and has referred Section 2 and has submitted that the aforesaid
submission is in line with the Section 2 of the aforesaid Act of 1856.
The learned Amicus has then referred to the judgment which has been
relied upon by the appellants and has decided by Hon’ble Bombay High
Court reported in 2024 SCC OnLine Bombay 3541(Supra) and has
referred to paragraph 26 thereof and submits that upon death of widow,
the property devolves upon daughters as absolute estate.
14. The learned Amicus has then relied upon the judgment passed by
Hon’ble Supreme Court reported in (2022) 11 SCC 520 [Arunachala
Gounder (dead) By Lrs. Vs. Ponnusamy and Others] and has referred
to paragraph 50, 51, 68 and 69 to submit that there was a previous
partition prior to death of Radha Mahto and therefore, the property
devolved upon Radha Mahto as his exclusive property and upon his
death the same will devolve by inheritance and not by survivorship.
Under such circumstances, there was no occasion for allocation of the
property in Khata No. 57 and ½ share of Khata No.56 to the agnates of
Radha Mahto upon remarriage of Sohagi Devi, the widow of Radha
Mahto.
st
15. She has also relied upon Mulla’s Hindu Law, 21 Edition, at page
No.142, which deals with the consequence of remarriage of a widow.
She submits that upon true reading of the aforesaid commentary under
Hindu Law by Mulla, it is apparent that upon remarriage of widow, the
property would go to the next in line i.e. the daughter. In the present
case, admittedly, Radha Mahto did not have any son, son’s son, son’s
son’s son at the time of his death.
Arguments of the respondents
16. The learned counsel for the respondents has adopted the
submission advanced by learned Amicus.
Rejoinder arguments of the appellants.
17. In response, learned counsel for the appellants has submitted that
the judgment cited by learned Amicus reported in (2022) 11 SCC 520
(Supra) does not apply to the facts and circumstances of this case
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inasmuch as in the said case only one daughter was there in the family
and in the present case at the time of death of Radha Mahto, there were
two daughters and a widow. He has submitted that the consequence of
succession upon remarriage of widow is different from a circumstance
when there is no widow at all. He has submitted that the judgment is to
be seen in the light of the facts of the said case and other observations
in the judgment may not guide the present case. He has submitted that
the judgment reported in (2022) 11 SCC 520 (Supra) is completely
distinguishable on facts.
Findings of this court.
18. Case of the plaintiffs
a. The suit was initially filed by Pato Devi, Wife of Kashi Mahto
and three sons of Kashi Mahto namely Bhola Mahto, Kushal
Mahto and Ledu Mahto and three daughters of Kashi Mahto
namely Jhumni Devi, Riba Devi and Purni Devi for a preliminary
th
decree of 7/9 share in schedule-A and schedule-B property and
for a declaration that the sale deed executed by Bilasho and Bauni
Devi, both daughters of Radha Mahto (son of Dukhi Mahto) is
collusive, null and void and no title and possession passes by
virtue of the said sale deed in favour of defendant No.1 namely
nd
Chola Ram Mahto (son of Kashi Mahto through his 2 wife
Sohagi Devi).
Pato Devi died during the pendency of the suit and Bauni Devi
(daughter of Radha Mahto and his wife Sohagi Devi) was later
on made defendant no. 3 in the suit and the suit was amended and
th
the plaintiffs now claimed 6/8 share in schedule A and B of the
plaint.
b. Defendant no. 2 was Gaura Devi (daughter of Kashi Mahto
nd
through his 2 wife Sohagi Devi).
c. It was the case of the plaintiffs that Sohagi Devi married twice,
st
1 marriage was with Radha Mahto and after his death married
cousin brother of Radha Mahto, namely, Kashi Mahto. Thus,
Sohagi Devi has children from Radha Mahto and also from Kashi
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st
Mahto. The plaintiffs were the children through the 1 wife of
Kashi Mahto. It is not in dispute that Bilaso Devi, full sister of
Bauni Devi and co-vendor of the impugned sale deed had
expired.
d. It was the case of the plaintiffs that the property recorded in the
name of Amrit Mahto, who had two sons Dukhi Mahto and Kailu
Mahto and at the time of last survey operation Dukhi Mahto had
expired, so his landed property was recorded in the name of
Radha Mahto, his son. It was their case that land under Khata No.
15 was recorded in the name of Kailu Mahto; the land under
Khata No. 57 was recorded in the name of Radha Mahto; and the
land under Khata No. 56 was recorded jointly in the name of
Radha Mahto, S/o Dukhi Mahto and Kailu Mahto, S/o Amrit
Mahto. The property in Khata no. 15, 56, and 57 were included
in schedule A. Further it was the case of the plaintiffs that the
schedule B property were the purchased properties of Kashi
st
Mahto and his four sons (three sons through his 1 wife and one
nd
son from his 2 wife Sohagi Devi, who was made defendant
no.1).
e. It is further case of the plaintiffs that Dukhi Mahto s/o Amrit
Mahto died leaving behind his only son Radha Mahto and his
wife Dukhni Devi. The wife of Radha Mahto was Sohagi Devi
and he had two minor daughters namely Bilasho Devi and Bauni
Devi.
f. As per the case of the plaintiffs, Radha Mahto died sometimes in
the year 1936 in the jointness. Both the daughters of Radha
Matho were living under the care and guardianship of their
mother Sohagi Devi and grandmother Dukhni Devi. However,
Sohagi Devi, the wife of Radha Mahto, remarried with her
brother-in-law Kashi Mahto, S/o Kailu Mahto and grandson of
nd
Amrit Mahto. At the time of 2 marriage, Kashi Mahto came in
exclusive possession and became the sole owner of all the Khata
No. 15, 57 and 56 [schedule A properties] and Kashi Mahto, after
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marriage with Sohagi Devi, had a son namely Chola Ram Mahto
(defendant No.1) and a daughter Gaura (defendant No.2). It was
their further case that Sohagi Devi died in the year 1950 and
Kashi Mahto died in the year 1966.
g. Further case of the plaintiffs was that after death of Kashi Mahto,
his sons, wife Pato and daughters remained in joint possession of
all the lands under khata Nos. 15, 57 and 56. The lands were
never partitioned by metes and bounds.
h. It was also their case that Kashi Mahto had purchased some land
from various persons and after his death, all the four sons of
Kashi have purchased lands jointly. All the lands purchased by
Kashi Mahto and his four sons are shown in schedule-B and the
lands shown in schedule-A were the lands of Khata Nos. 15, 57
and 56.
i. It was their case that parties were in joint possession of all the
land of schedule-A and schedule-B and at the time of vesting of
Zamindari, Kashi Mahto was shown as the tenant in the year
1955 with respect to Khata Nos. 15, 57 and 56. However, there
was a proceeding under Section 144 Cr.P.C. and for the first time
plaintiffs came to know that Chola Mahto (defendant no.1) had
played fraud and fraudulently and collusively got a sale deed
executed from both the daughters of Radha Mahto i.e. Bilasho
Devi and Bauni Devi on 11.04.1970 with respect to Khata No.
57. It was further case that the sale deed executed by both the
daughters of Radha Mahto was never acted upon and Radha
Mahto died in 1936 in jointness with Kailu Mahto and Kashi
Mahto son of Kailu Mahto.
j. It was their case that the daughters of Radha Mahto had no right
to transfer any property and no consideration had passed. It was
their further case that the plaintiffs and defendants were in joint
possession over the land of Khata No. 15, 57 and 56 and Kashi
Mahto was in exclusive possession till his death and
consequently, the sale deed was not valid.
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19. Case of the defendant Nos. 1 and 2.
i. Written statement was filed by the defendant No.1 and 2 and it
was asserted that it was false to say that Dukhni Devi was a
widow of Radha Mahto and that Radha Mahto died in the year
1936. It was asserted that Radha Mahto died sometimes in the
year 1945 leaving behind his widow Sohagi and two daughters
Bouni and Bilasho. Dukhani was not alive at the time of death of
Radha Mahto. However, it was not in dispute that widow of
Radha Mahto, namely, Sohagi Devi, was married with Kashi
Mahto.
ii. It was asserted that the defendants were the absolute owner of
Khata No. 57 and entire half of the land of Khata No. 56 was
coming into possession of Bilasho and Bouni. After death of
Radha Mahto, Sohagi and her daughters remained in possession
over the land of Khata No. 57 and 56 and after marriage with
Kashi Mahto, Sohagi Devi ceased to possess the land.
iii. It was asserted in the written statement that Radha Mahto and
Kashi Mahto had partitioned their land of Khata No.56 to the
extent of ½ and ½. It was also stated that the plaintiffs had neither
title nor possession over the land of Khata No. 57 and ½ of the
land of Khata No.56. It was also asserted that all the purchased
land was also separated between the plaintiffs and the defendant
No.1 after death of Kashi Mahto. It was also asserted that
plaintiffs under the garb of jointness want to garb the exclusive
land of the defendants of Khata No.56 and 57 along with the other
properties.
iv. It was denied that plaintiffs for the first time learnt about the sale
deed executed by the daughters of late Radha Mahto on
11.04.1970 with respect of land of Khata No.57. It was asserted
that the daughters of Radha Mahto had the right, title, interest and
possession over the land of Khata No.57 and rightly transferred
the sale deed to defendant No.1 for consideration and defendant
No.1 after transfer came in possession of the same.
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v. It was also asserted that the property was mutated in the name of
Bilasho and Bouni and a petition was also filed for stopping the
rent issued in the name of Kashi Mahto that was registered as M-
Case No. 12 of 1968 and ultimately the mutation was allowed in
the name of Bilasho and Bauni vide order dated 11.06.1968.
20. Case of defendant No.3
Bauni Devi D/o Radha Mahto later on was also made party in the
suit vide order dated 20.07.2002 and she appeared in the suit as
defendant No.3 and filed her separate written statement on
22.11.2003. According to her, the suit has been filed for
declaration of title, cancellation of sale deed and recovery of
possession, but the plaintiffs with ill motive malafide and
fraudulent intention want to get decree without adjudication of
title and possession. She has accepted the sale of lands of khata
No.57 and half of khata No.56 in favour of the defendant No.1
by a registered sale deed dated 11.04.1970. It is her further case
that after the death of Radha Mahto in the year 1945 and not in
the year 1936 and she inherited his interest and stepped into his
shoes being his legal heirs. She has further stated that the
plaintiffs have got no share in the suit properties and they are not
entitled to get any relief as sought for. Defendant No.3 had
supported the written statement filed by defendant Nos.1 & 2.
Kashi Mhato did not become the sole owner of the land of Khata
Nos. 15, 56 and 57. It was also asserted that Radha Mahto was
alive at-least till 1938 and therefore, there was no occasion for
Sohagi Devi or her mother-in-law to bequeath the property
owned and possessed by Radha Mahto in 1938 when he was
alive.
21. The following issued were framed by the learned trial court
I. Is the suit maintainable in its present form?
II. Have the plaintiffs valid cause of action for the suit?
III. Is the suit barred by law of limitation and adverse
possession?
IV. Is the suit barred by estoppel and acquiescence?
V. Is the suit barred by mis-joinder of the parties?
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VI. Is the court fee paid sufficient?
VII. Is the sale deed dated 11.04.1970 executed by Bilasho
Devi and Bauni Devi void, illegal and in-operative and
has the defendant No.1 got any title or possession over the
lands?
VIII. Have the both parties joint possession and title over the
suit lands?
IX. Are the plaintiffs entitled for preliminary decree for
partition?
X. Are the plaintiffs entitled for any other relief or reliefs?
22. The trial court’s judgement
The learned trial court has come to the finding that there was
(a)
partition between Radha Mahto and Kailu Mahto and this fact
was accepted by the plaintiffs himself in his cross-examination.
The learned trial court has also recorded that the stand taken by
the plaintiffs that mother of Radha Mahto namely Dukhni Devi
had given the entire property to Kashi Mahto also indicated that
there was partition of property between Radha Mahto and Kashi
Mahto.
(b) After having recorded aforesaid finding, the learned trial court
recorded that therefore, Bilasho Devi and Bouni Devi, both
daughters of Radha Mahato, were entitled to inherit the entire
property in Khata No. 57 and ½ share in Khata No. 56 and for
this finding a reference has been made to Section 14 of Hindu
Succession Act 1956, according to which if a female has acquired
a property prior to coming into force of the Act of 1956 or she
acquires the property after coming into force of 1956 she would
be treated as exclusive owner of the property and not limited
owner.
(c) Thereafter, the learned trial court held that accordingly, Bouni
Devi and Bilasho Devi, both daughters of Radha Mahato, became
the exclusive owner of the suit property after death of their father
Radha Mahto. They were also found to be in possession of the
property as rent receipts were issued in their name since 1968.
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(d) The trial court also recorded that prior to 1956, Bilasho Devi and
Bouni Devi, successors of the property of Radha Mahato, were
limited owner after 1937 and they became the exclusive owners
after 1956.
(e) The learned trial court concluded that the two daughters of Radha
Mahto, namely, Bilasho Devi and Bouni Devi, were the exclusive
owner of Khata No. 57 and ½ of Khata No. 56 and the said
properties were not the joint properties. They became the owners
of the property as per old Hindu Law as applicable. The court
also held that, Kashi Mahto [cousin brother of Radha Mahato,
who married widow of Radha Mahato, and was step father of the
two daughters of Radha Mahto, namely, Bilasho Devi and Bouni
Devi] did not acquire the property of Radha Mahto by way of
survivorship as there was a previous partition between Radha
Mahto and Kailu Mahto [father of Kashi Mahto] and the
aforesaid properties were not joint properties.
(f) It is not in dispute that khata no. 15 was recorded in the exclusive
name of Kailu Mahto [father of Kashi Mahto]; khata no. 57 was
recorded in the exclusive name of Radha Mahto [father of
Bilasho Devi and Bouni Devi who had executed the sale deed
involved in this case in the year 1970] and khata no. 56 was
recorded in the name of Radha Mahato and Kailu Mahto [father
of Kashi Mahto].
(g) The sale deed executed by Bilasho Devi and Bouni Devi, both
daughters of Radha Mahto, with respect to khata no. 57 in favour
of defendant no. 1 was held to be valid.
(h) The learned trial court held that so far as the properties of Kashi
Mahto is concerned, the 6 plaintiffs and defendant Nos.1 and 2 ,
th
all sons of Kashi Mahato would be entitled to equal 1/8 share
with respect to Khata No. 15 and ½ of Khata No. 56 and the same
was to be divided equally.
The learned trial court also held that so far as the property
(i)
st
purchased by Kashi Mahto and his 3 sons from 1 wife and one
14
2026:JHHC:14248
nd
son from his 2 wife are concerned, there would be five share
th
1/5 each, including that of Kashi Mahto and since Kashi Mahto
had expired therefore, his property will be divided equally
amongst all the children of Kashi Mahto i.e. 6 plaintiffs and 2
th
defendants i.e. 1/8 each and the share of Kashi Mahto will
devolve upon each one of them to the extent of 1/5 X 1/8.
st
23. 1 Appellate court’s judgement
st
I. The learned 1 appellate court after discussing the materials on
records held that there was partition before the survey and
settlement operation and land of Khata No. 57 was recorded in
the name of Radha Mahto and land of Khata No. 15 was recorded
in the name of Kailu Mahto and there might be some reason that
the lands of Khata No. 56 were not partitioned and that is why it
was recorded in the name of Radha Mahto and Kailu Mahto.
st
II. The learned 1 appellate court further recorded that by the
admission of the plaintiffs himself, it was well established or
proved that Radha Mahto and Kailu Mahto were not joint rather
they had partitioned the lands prior to survey and settlement
operation.
III. The learned trial court has rightly held that the lands of Khata No.
57 were absolute property of Radha Mahto and half of the lands
of Khata No. 56 was the property of Radha Mahto.
st
IV. After recorded the aforesaid, the learned 1 appellate court
nd
observed that the 2 most important aspect of this case which
has to be decided as to whether Bauni Devi and Bilasho Devi
has got right to sale the lands or whether they inherited the
property of Radha Mahto.
st
V. The learned 1 appellate court on the basis of materials on record
held that it was very much clear that property of Radha Mahto
was inherited by his other female members in absence of any
male members in his family and after enforcement of Hindu
Succession Act, 1956 they became absolute owners of the
property.
15
2026:JHHC:14248
st
VI. The learned 1 appellate court rejected the plea of reversion of
the property and recorded that after remarriage of Sohagi Devi,
wife of Radha Mahto, minor daughters of Radha Mahto and
Sohagi Devi, namely, Bauni Devi and Bilasho Devi started living
with her mother along with step father namely Kashi Mahto
(cousin brother of Radha Mahto) and therefore, rent receipts were
started to be issued in the name of Kashi Mahto. The court further
recorded that the rent receipts or revenue records do not confer
any title and it was not the case of the plaintiffs that the daughters
of Radha Mahto relinquished their right or their rights were
forfeited.
st
VII. The learned 1 appellate court also recorded that it is well settled
that the property separate or self-acquired of a member of joint
Hindu family may be impressed with the character of joint family
property if it is voluntarily thrown by the owner in the common
stock with the intention of abandoning his separate claim therein
but to establish such abandonment a clear intention to waive
st
separate rights must be established. The learned 1 appellate
court rejected the plea of abandonment by the daughters of Radha
Mahto and also observed that the plaintiffs had not asserted
anywhere in the plaint that these two minors daughters have
abandoned their rights or relinquished their right in favour of the
plaintiffs.
st
VIII. The learned 1 appellate court further recorded that as soon as
two minor daughters became major they felt it necessary that rent
receipts being issued in the name of Kashi Mahto be cancelled
they challenged it vide Exhibit-D and ultimately after inquiry, it
was found that they were the absolute owners of the property,
their names were mutated and rent receipts started to be granted
in the name of Kashi Mahto were cancelled in the year 1968 and
that was within the knowledge of the plaintiffs.
st
IX. The learned 1 appellate court ultimately held that as per
Mitakshara Law of Inheritance two daughters inherited the
16
2026:JHHC:14248
property of their father Radha Mahto since Radha Mahto and
Kailu Mahto were separate prior to the survey and settlement
operation.
st
X. The learned 1 appellate court ultimately held that neither the sale
deed executed by Bauni Devi and Bilasho Devi with respect to
khata no. 57 in favour of respondent No.1 Chola Ram Mahto was
fit to be cancelled nor the judgment of learned trial court required
any interference and ultimately the appeal was dismissed.
st
XI. The ultimate finding of the learned 1 appellate court is in
paragraph 18 of its judgment which is quoted as under:-
“18. In the present case, the appellants have not assertted any
where in the plaint that these two minors daughters have
abandoned their rights or relinquished their right in favour
of the plaintiff. It is well settled law that any property cannot
remain in abeyance. Meaning there by property cannot live
without owner. There must be owner of the property either
absolute or unstable owner. The property may be held by any
person but he cannot be the owner of the property and for
that law provides certain principle as to when he may become
the absolute owner by laps of time or by conduct of the
parties. Here, in the present case, as soon as two minor
daughters became major they felt it necessary that rent
receipts being issued in the name of Kashi Mahto be
cancelled they challenged it vide exhibit D and ultimately
after inquiry it was found that they were the absolute owners
of the property, their names were mutated and rent receipts
started to be granted in the name of Kashi Mahto were
cancelled in the year 1968 and that was in the knowledge of
the plaintiff. Therefore, as per Mitakshara Law of Inheritance
written by Mulla, two daughter inherited the property of their
father Radha Mahto and Radha Mahto and Kailu Mahto were
separate prior to the survey and settlement operation.
Therefore, the learned could below did not commit any
mistake or I do not find any incorrect findings in the judgment
and the learned court below has rightly dismissed the suit in
part. The property purchased by the plaintiff or the defendant
were rightly ordered to be partitioned. I do not find any
irregularity regarding the law as well as facts and the learned
court below has discussed the evidence in detail in his
judgment at the relevant place. Therefore, neither the sale
deed executed by Bauni Devi and Bilasho Devi in favour of
17
2026:JHHC:14248
respondent No.1 Chola Ram Mahto is cancelled nor the
impugned judgment requires any interference. The learned
court below has considered all these aspects (facts and laws)
properly and has not committed any mistake in coming the
finding.”
Findings of this court.
24. A genealogical table has been furnished by the learned counsel
for the appellants, which is not in dispute.
Amrit Mahato (recorded tenant and the common ancestor) had two
sons, Dukhi Mahto and Kailu Mahto and they had one son each, Radha
Mahto and Kashi Mahto respectively.
st
Kashi Mahto had 3 sons and three daughters from 1 wife, namely, Pato
Devi.
Radha Mahto died leaving mother- Dukhni Devi, his widow and two
daughters, namely Bilasho Devi and Bauni Devi.
The aforesaid undisputed genealogy as produced during the course of
hearing is embossed as under: -
It is further not in dispute that -Khata No.15- Recorded in
the name of Kailu Mahto .
Khata No.57- Recorded in the name of Radha Mahto.
Khata No.56- Jointly recorded in the names of Radha
Mahto and Kailu Mahto
18
2026:JHHC:14248
Radha Mahto died in the year 1936 (According to plaintiffs)
Radha Mahto died in the year 1945 (According to the
defendants)
nd
25. This Court finds that in this 2 appeal, considering the
substantial question of law, it is not in dispute that there was previous
partition between Radha Mahto and Kailu Mahto and after partition,
Radha Mahto died leaving behind his widow Sohagi Devi, two
daughters namely Bilasho Devi and Bauni Devi and Sohagi Devi
remarried Kashi Mahto, is not in dispute. This all happened prior to
coming into force of Hindu Succession Act, 1956. However there was
a dispute as to whether Radha Mahato died in 1936 (as per plaintiffs) or
in the year 1945 (as per the contesting defendants), but there is no
dispute that he died prior to coming into force of Hindu Succession Act,
1956 and they were governed by Mitakshara School of Hindu Law and
the succession, on account of death of Radha Mahato opened prior to
coming into force of Hindu Succession Act, 1956. It is also not in
dispute that his widow remarried prior to coming into force of Hindu
Succession Act, 1956.
26. Section 2 of the Hindu Widows Remarriage, Act 1856 is quoted
as under:-
“2. 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.”
27. Consequently, in view of the provisions of Hindu Widow’s
Remarriage Act, 1856, all rights and interest of Sohagi Devi (widow of
Radha Mahto) with respect to the properties of her husband Radha
Mahto, upon her remarriage, ceased and determined as if she had then
died, and the next heirs of her deceased husband or other persons
19
2026:JHHC:14248
entitled to the property on her death, shall thereupon succeed to the
property.
Since, the property involved in this case, was acquired by Radha Mahto
during his lifetime through partition therefore, the properties upon his
death exclusively devolved upon his wife Sohagi Devi and not upon his
daughters. In case the widow was not there, the properties would have
devolved upon his daughters and would not have gone into the hands of
his cousin Kashi Mahto by way of survivorship. The property did not
immediately devolve upon the daughters of Radha Mahto as the widow
was up in line in succession and once the widow remarried, she was to
be treated as good as dead and the property devolved upon the daughters
who were next in line to the widow and did not devolve upon the
agnates of Radha Mahto. This would be in view of the judgement
passed by the Hon’ble Supreme Court reported in (2022) 11 SCC 520
(supra) which has been discussed in details in the latter part of this
judgement.
28. This Court is of the considered view that the judgment passed by
Hon’ble Bombay High Court reported in (2024) SCC OnLine Bom
3541 (Supra) does not apply to the facts of the case.
In the said case, the substantial question of law which fell for
consideration reveal that the father had two wives and one daughter
each from each wife. One of the wives died in 1930 and her daughter
died in 1949 and the father expired on 10.06.1952. The surviving wife
of the father expired on 08.07.1973, after executing a will in favour of
her daughter on 14.08.1956 and consequently, the daughter filed a suit
seeking a declaration that she had ½ share of the property left behind
by her father and sought a partition. The suit was dismissed holding that
nd
only the 2 wife alone had inherited the suit property in view of the
provisions of Hindu Woman Right of Property Act, 1937 and she
became the absolute owner in 1956, the appeal preferred by the
daughter was dismissed which gave rise to the second appeal framing
the following substantial question of law.
20
2026:JHHC:14248
“Whether a daughter could acquire any right, either
limited or absolute, by inheritance prior to coming into
force of the Hindu Succession Act, 1956 in the property of
her deceased father, who died prior to 1956, leaving behind
him in addition to such daughter, his widow as well?”
There were two views of Hon’ble Bombay High Court and as per one
of the judges, daughter was not to be treated as coparcener under the
Act, 1937 and therefore, her mother acquired the property under the Act
of 1937 under Section 3(2). A contrary view was taken in another case
where it was held that the daughter was entitled to ½ share of the
property of her father who died prior the Act of 1956 and therefore, a
reference was made to the division bench to answer to question.
The Hon’ble Bombay High Court analyzed the law with respect to
Women’s Right to Property with particular reference to mother and
daughter including the provisions of Hindu Women’s Right to Property
Act, 1937. The court also considered the provisions of Hindu
Succession Act and in paragraph 9 it has been held that under the Act
of 1937, when the Hindu dies intestate leaving behind separate
property, his wife together are entitled to the same share as a son and
they acquire the limited interest on devolution and for the said limited
interest they would have the same right of claiming partition as a male
owner. The court held that the Act of 1937 does not give any right to a
daughter to inherit the property of father, if father dies prior to 1956.
The court also referred to the judgment passed in the case of
Pranjivandas Tulsidas and Jagmohandas Jamnadas v. Devkuvarba
wd/o Ramdas Hirchand reported in (1859) 1 Bom 130 wherein it was
held that daughters take the immovable property absolutely from their
father after their mother’s death. The Hon’ble Bombay High Court
considered the judgment passed in the case of Arunachala Gounder v.
Ponnusamy and Others (Supra) wherein by referring to the Treatise
on the Hindoo Law of Inheritance published way back in 1868 it has
been observed that “Failing male issue, therefore, a widow takes the
21
2026:JHHC:14248
self-acquired property of her husband. No doubt, on failure of male
issue and a widow, the daughter would take.”
29. The court ultimately held that a daughter would not have any
right either limited or absolute by inheritance prior to coming into
force of Act of 1956 in the property of deceased father who died prior
to 1956 leaving behind him in addition to such daughter, his widow
as well.
30. The point, as to what would be the right of the daughters, after
remarriage of their widow mother or after death of their widow mother,
was not under consideration in the aforesaid Judgement of Hon’ble
Bombay High Court but the discussions in the judgement reveal that the
earlier judgement of Bombay High Court reported in (1859) 1 Bom 130
(supra) also held that daughters take the immovable property absolutely
from their father after their mother’s death.
31. In the present case it has to be examined as to how the property
would be inherited with regards to self /exclusive properties of father,
who died leaving behind his widow and two daughters and what would
be the consequences of remarriage of the widow. All these events in the
present case are prior to coming into force of Hindu Succession Act,
1956. In the aforesaid case decided by Hon’ble Bombay high court, the
issue was relating to right over the property of deceased father who died
prior to 1956 leaving behind him in addition to daughter, his widow as
well.
In the present case, remarriage of widow of Radha Mahto, having two
minor daughters, is the crucial distinguishing fact of this case apart
from the fact that the parties in the present case are not governed by
Bombay school of Hindu Law.
32. In the judgment passed by Hon’ble Chhattisgarh High Court in
S.A. 178 of 2014 (Supra) , the one of the substantial questions of law
which was involved was “Whether the plaintiff is entitled to inherit the
suit property by way of succession if the partition had taken place prior
to 1956?” The Hon’ble Chhattisgarh High Court referred to the
judgment passed by Hon’ble Supreme Court in the case of Arshnoor
22
2026:JHHC:14248
Singh vs. Harpal Kaur and Others (Supra) wherein it was observed in
by referring to an earlier judgement that it is settled that the property
inherited by a male Hindu from his father, father's father or father's
father's father is an ancestral property and essential feature of ancestral
property, according to Mitakshara Law, is that the sons, grandsons, and
great grandsons inherit the property and acquire an interest by birth;
share which a coparcener obtains on partition of ancestral property is
ancestral property as regards his male issue and after partition, the
property in the hands of the son will continue to be the ancestral
property and the natural or adopted son will take interest in it by way of
survivorship; after Hindu commencement of Hindu Succession Act,
1956, if succession opened under the old Hindu law, i.e. prior to the
commencement of the Hindu Succession Act, 1956, the parties would
be governed by Mitakshara law; the property inherited by a male Hindu
from his paternal male ancestor shall be coparcenary property in his
hands vis à vis his male descendants upto three degrees; the nature of
property will remain as coparcenary property even after the
commencement of the Hindu Succession Act, 1956. In the said case the
common ancestor expired before 1956 and the partition was opened, the
case was to be governed by Mitakshara Law as it stood prior into
coming into force of 1956.
The Hon’ble Chhattisgarh High Court thereafter considered the
judgment passed by the Hon’ble Supreme Court reported in (2022) 11
SCC 520 (Supra) and referred to paragraph 50 and 51 of the said
judgment dealing with Hindu Law of Inheritance (Amendment) Act,
1929 which was the earliest statutory legislation which brought the
Hindu females into the scheme of inheritance which included the
daughters. The Hon’ble Chhattisgarh High Court ultimately held that it
is quite vivid that when a Hindu governed by Mitakshara law died
before 1956, his separate property would completely devolve upon his
son. A female child could claim a right in such property only in the
absence of a male child. The Hindu Law of Inheritance (Amendment)
Act, 1929 did not affect the son's absolute right to inherit his father's
23
2026:JHHC:14248
property. It merely enlarged the circle of heirs who could succeed in
default of male issue, by introducing certain female heirs and the sister's
son. The relevant paragraphs for the purposes of this case are quoted as
under:
“25. Thus, it is evident that the purpose of the statute Act of
1929 was not to modify the fundamental concepts of Shastric
Hindu law relating to inheritance. The only difference it
introduced was that the chance of inheritance of a son's
daughter, daughter's daughter, sister, etc., was recognized in
a different capacity from that which prevailed earlier .
26. Now this Court has to examine how the property of a
person governed by the Mitakshara law of inheritance would
devolve prior to the commencement of the Act, 1956. It is well
settled legal position of law that as per Mitakshara Law, the
daughter is not entitled to inherit the property of her father
before the enactment of the Act, 1956. The succession to the
property of Hindus whether ancestral or self-acquired was
governed by the pristine principles of Hindu law, as embodied
in the Shastric texts and Smritis. Under the Mitakshara law,
even the self acquired property of a male devolved exclusively
upon his male issue, and only in the absence of such male issue
did it pass to other heirs and as per Law of inheritance the self
acquired estate of a male would descend to his male issue and
only in default of such issue would it descend to others.
27. From the law laid down by the Hon'ble Supreme Court in
the case of Arunachala Gounder's case (supra), it is quite
vivid, that Mitakshara Law of inheritance applicable to a
person who died before 1956 and who was governed by the
pristine Mitakshara law, the wife or daughter of a male would
inherit his separate property only if he died without a male
child.
29. Thus, from the above stated discussion and considering the
legal position, it is quite vivid that when a Hindu governed by
Mitakshara law died before 1956, his separate property would
completely devolve upon his son. A female child could claim a
right in such property only in the absence of a male child. The
Hindu Law of Inheritance (Amendment) Act, 1929 did not
affect the son's absolute right to inherit his father's property.
It merely enlarged the circle of heirs who could succeed in
default of male issue, by introducing certain female heirs and
the sister's son.”
24
2026:JHHC:14248
33. In the present case there is no dispute that the partition opened
prior to coming into force of Hindu Succession Act, 1956 and certainly
after coming into force of Hindu Law of Inheritance (Amendment) Act,
1929. The finding has been recorded in connection with partition prior
to death of Radha Mahto and at the time of the death of Radha Mahto
he was survived by his widow and two daughters. Certainly, the widow
acquired right over the property, but upon her remarriage, she was
deprived of all rights over the property by virtue of the Hindu Widow’s
Remarriage Act, 1856 in terms of Section 2 which is quoted as under: -
“2. 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.”
34. The property of her deceased husband, Radha Mahato, upon her
remarriage, would fall to the next heirs of the deceased husband. As per
provision of the aforesaid Act of 1929 and interpreted by Hon’ble
Supreme Court in the judgment reported in ( 2022) 11 SCC 520 (Supra)
it is apparent that next in line were the daughters who acquired the
property. Therefore, even assuming that Radha Mahto died in the year
1936, the suit for partition has been rightly dismissed as the daughter
would acquire the property not by virtue of the Act of 1937, but by the
aforesaid Act of 1929. It is not correct to say that before the year 1937
or before the year 1956, the daughters and widows were not entitled to
self-property of their father / husband even in the absence of male heir.
35. In the judgment passed by Hon’ble Supreme Court reported in
(2022) 11 SCC 520 (Supra) the undisputed fact was that the father died
in 1949 and the property would devolve upon his brother by
st
survivorship. The 1 appeal was dismissed by the High Court. The case
of the appellant before the Supreme Court was that since it was the
independent property of the father it would would devolve by
25
2026:JHHC:14248
succession upon his daughter, who had died in the year 1967 and it was
also argued that under the Hindu Law, a daughter is not disqualified to
inherit the separate property of her father when a male Hindu dies
without a son leaving only daughter, his separate property would
devolve upon the daughter through succession and will not devolve
upon brother’s son through survivorship. On the other hand, the
respondents argued that the plaintiffs and her sisters were not the heirs
of the deceased who died in the year 1949 and they were not entitled to
any share in the suit property and the suit was rightly dismissed.
In the aforesaid backdrop the Hon’ble Supreme Court observed that
the primary issue which arise for consideration was the right of the sole
daughter to inherit the self-acquired property of her father in the
absence of any other legal heir having inheritable right before the
commencement of Hindu Succession Act, 1956, in other words the
issue was whether the suit property will devolve upon daughters by way
of inheritance or shall devolve upon father’s brother’s son by
survivorship. The Hon’ble Supreme Court considered various sources
of Hindu Law right from paragraph 22 of the judgment and in paragraph
25 by referring to the authority in the school of Banaras Mr. Coolie
Brooke, wherein it was observed as under:
“Failing male issue, therefore, a widow takes the self-acquired
property of her husband. No doubt, on failure of male issue and
a widow, the daughter would take.”
The court also examined the impact of Hindu Law of Inheritance
(Amendment) Act, 1929 and held in paragraph 50 and 51 and held that
it is abundantly clear that a daughter was in fact capable of inheriting
the father's separate estate. The said paragraphs are quoted as under:-
“50. The Hindu Law of Inheritance (Amendment) Act, 1929
was the earliest statutory legislation which brought the Hindu
females into the scheme of inheritance. The 1929 Act
introduced certain female statutory heirs which were already
recognised by the Madras School i.e. the son's daughter,
daughter's daughter, sister and sister's son in the order so
specified, without making any modifications in the
fundamental concepts underlying the textual Hindu Law
26
2026:JHHC:14248
relating to inheritance; only difference being that while before
the Act, they succeeded as bandhus, under the Act, they
inherited as “gotra sapindas”.
51. The Mitakshara law also recognises inheritance by
succession but only to the property separately owned by an
individual, male or female. Females are included as heirs to
this kind of property by Mitakshara law. Before the Hindu Law
of Inheritance (Amendment) Act, 1929, the Bengal, Benares
and Mithila sub-schools of Mitakshara recognised only five
female relations as being entitled to inherit, namely — widow,
daughter, mother, paternal grandmother and paternal great-
grandmother. The Madras sub-school recognised the
heritable capacity of a larger number of females heirs that is
of the son's daughter, daughter's daughter and the sister, as
heirs who are expressly named as heirs in Hindu Law of
Inheritance (Amendment) Act, 1929. The son's daughter and
the daughter's daughter ranked as bandhus in Bombay and
Madras. The Bombay school which is most liberal to women,
recognised a number of other female heirs, including a half-
sister, father's sister and women married into the family such
as step-mother, son's widow, brother's widow and also many
other females classified as bandhus. From the above
discussions, it is abundantly clear that a daughter was in fact
capable of inheriting the father's separate estate.”
Paragraph 68 of the judgment passed by Hon’ble Supreme Court is also
quoted as under: -
“68 . Right of a widow or daughter to inherit the self-acquired
property or share received in partition of a coparcenary
property of a Hindu male dying intestate is well recognised
not only under the old customary Hindu Law but also by
various judicial pronouncements and thus, our answer to the
Questions 1 and 2 are as under:
“If a property of a male Hindu dying intestate is a
self-acquired property or obtained in partition of a
coparcenary or a family property, the same would
devolve by inheritance and not by survivorship, and
a daughter of such a male Hindu would be entitled
to inherit such property in preference to other
collaterals.”
36. This Court finds that in view of the aforesaid judgement passed
in the case reported in (2022) 11 SCC 520 (supra) there is no doubt
that r ight of a widow or daughter to inherit the self-acquired property
27
2026:JHHC:14248
or share received in partition of a coparcenary property of a Hindu male
dying intestate, is well recognized not only under the old customary
Hindu Law but also by various judicial pronouncements. Thus, if a
property of a male Hindu dying intestate is a self-acquired property or
obtained in partition of a coparcenary or a family property, the same
would devolve by inheritance and not by survivorship, and a daughter
of such a male Hindu would be entitled to inherit such property in
preference to other collaterals. This would be the position even if the
succession opens prior to coming into force of Hindu Succession Act,
1956, as in the present case.
37. In view of the aforesaid discussions, there can be no doubt that
prior to coming into force of Hindu Succession Act, 1956 , upon
remarriage of the widow of Radha Mahto, his self-properties devolved
upon his daughters, who were next in line after the widow, as Radha
Mahto had no sons.
38. Although, as per substantial question of law, a dispute was
sought to be raised as to whether Radha Mahto died in 1936 (as per
plaintiffs) or in the year 1945 (as per contesting defendants) with
particular reference to evidence of defendant no.1 (Chola Ram Mahto)
but no arguments have been advanced on this point. Further, no specific
finding has been recorded by the learned court with respect to the date
or year of death of Radha Mahto but it is not in dispute that he died prior
to coming into force of the Act of 1956 and accordingly succession
opened prior to coming into force of the Hindu Succession Act of 1956.
However, even from perusal of the deposition Chola Ram Mahto
nd
(defendant no.1) son of Kashi Mahto [through 2 wife of Kashi Mahto
– the widow of Radha Mahto] this Court could not find any such
admission that Radha Mahto died in the year 1936.
39. The entire arguments have been advanced keeping in mind that
admittedly, the death of Radha Mahto occurred prior to 1956. However,
considering the judgement passed in the case reported in (2022) 11 SCC
520 (supra) year of death of Radha Mahto, in the year 1936 or in the
year 1945 has no bearing in the case, what is important is that he died
28
2026:JHHC:14248
prior to coming into force of Hindu Succession Act of 1956 and khata
no.57 was his self-property and there is a concurrent findings of both
the courts that there was previous partition between Radha Mahto and
Kailu Mahto father of Kashi Mahato.
In view of the aforesaid discussions, while answering the substantial
question of law involved in this case, it is held that the partition suit was
rightly dismissed to the extent it related to the self -properties of Radha
Mahto, who died leaving behind his widow and two minor daughters
and initially his widow was entitled to his self -properties and upon her
remarriage, the self -properties of Radha Mahto devolved upon his two
minor daughters, and will not devolve upon the agnates of their father,
Radha Mahto, as claimed by the plaintiffs. So far as the other properties
are concerned, there is already a decree of partition which has been
st
upheld by the learned 1 appellate court and the plaintiffs are not
aggrieved with such findings. The property of Khata No. 57 which
stood exclusively recorded in the name of Radha Mahto was sold by his
daughters through registered sale deed of the year1970 in favour of
Chola Ram Mahto (defendant no.1) and both the learned courts have
held that the sale deed was valid.
40. The substantial question of law is accordingly answered in
favour of the respondents and against the appellants (plaintiffs).
nd
41. This 2 appeal is accordingly dismissed.
42. Pending interlocutory application, if any, is dismissed as not
pressed.
Appreciation for Amicus and Payment
43. Ms. Prerna Jhunjhunwala, Advocate was appointed as an amicus
in this case by this Court. This Court records its appreciation for the
valuable assistance accorded by the learned Amicus Curiae in final
disposal of this case.
44. The Secretary, Jharkhand High Court Legal Services Committee
is directed to ensure that the legal remuneration of the learned Amicus
Curiae @ Rs.5,500/- per day subject to the cap of maximum permissible
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2026:JHHC:14248
amount is duly paid to her within a period of 4 weeks upon submission
of bills by her.
45. Let a copy of this order be communicated to the court concerned
and to the learned Amicus and also to the Secretary, Jharkhand High
Court Legal Services Committee.
(Anubha Rawat Choudhary, J.)
11.05.2026
Rakesh/-
th
Uploaded on:-11 May, 2026.
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