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2026 DAILYLAW 13434 (JHR)

BHOLA MAHTO And ORS. v. CHOLA RAM MAHTO And ORS.

SA/187/2008 · 2026-05-11

Anubha Rawat Choudhary

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Judgment text

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2026:JHHC:14248 1 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. 2026:JHHC:14248 2 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. 3. The learned 1st 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:- 2026:JHHC:14248 3 “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 respectively, were born from the 2nd 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. 2026:JHHC:14248 4 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 2026:JHHC:14248 5 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 2026:JHHC:14248 6 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. 2026:JHHC:14248 7 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. 15. She has also relied upon Mulla’s Hindu Law, 21st 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 2026:JHHC:14248 8 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 decree of 7/9th 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 Chola Ram Mahto (son of Kashi Mahto through his 2nd 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 the plaintiffs now claimed 6/8th share in schedule A and B of the plaint. b. Defendant no. 2 was Gaura Devi (daughter of Kashi Mahto through his 2nd wife Sohagi Devi). c. It was the case of the plaintiffs that Sohagi Devi married twice, 1st 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 2026:JHHC:14248 9 Mahto. The plaintiffs were the children through the 1st 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 Mahto and his four sons (three sons through his 1st wife and one son from his 2nd 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 Amrit Mahto. At the time of 2nd 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 2026:JHHC:14248 10 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. 2026:JHHC:14248 11 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. 2026:JHHC:14248 12 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? 2026:JHHC:14248 13 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 (a) The learned trial court has come to the finding that there was 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. 2026:JHHC:14248 14 (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 , all sons of Kashi Mahato would be entitled to equal 1/8th share with respect to Khata No. 15 and ½ of Khata No. 56 and the same was to be divided equally. (i) The learned trial court also held that so far as the property purchased by Kashi Mahto and his 3 sons from 1st wife and one 2026:JHHC:14248 15 son from his 2nd wife are concerned, there would be five share 1/5th 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 defendants i.e. 1/8th each and the share of Kashi Mahto will devolve upon each one of them to the extent of 1/5 X 1/8. 23. 23. 1st Appellate court’s judgement I. The learned 1st 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. II. The learned 1st 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. IV. After recorded the aforesaid, the learned 1st appellate court observed that the 2nd 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. V. The learned 1st 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. 2026:JHHC:14248 16 VI. The learned 1st 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. VII. The learned 1st 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 separate rights must be established. The learned 1st 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. VIII. The learned 1st 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. IX. The learned 1st appellate court ultimately held that as per Mitakshara Law of Inheritance two daughters inherited the 2026:JHHC:14248 17 property of their father Radha Mahto since Radha Mahto and Kailu Mahto were separate prior to the survey and settlement operation. X. The learned 1st 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. XI. The ultimate finding of the learned 1st 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 2026:JHHC:14248 18 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. Kashi Mahto had 3 sons and three daughters from 1st 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 2026:JHHC:14248 19 Radha Mahto died in the year 1936 (According to plaintiffs) Radha Mahto died in the year 1945 (According to the defendants) 25. This Court finds that in this 2nd 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 2026:JHHC:14248 20 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 only the 2nd 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. 2026:JHHC:14248 21 “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 2026:JHHC:14248 22 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 2026:JHHC:14248 23 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 2026:JHHC:14248 24 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.” 2026:JHHC:14248 25 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 survivorship. The 1st 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 2026:JHHC:14248 26 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 2026:JHHC:14248 27 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 right of a widow or daughter to inherit the self-acquired property 2026:JHHC:14248 28 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 (defendant no.1) son of Kashi Mahto [through 2nd 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 2026:JHHC:14248 29 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 upheld by the learned 1st 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). 41. This 2nd 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 2026:JHHC:14248 30 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/- Uploaded on:-11th May, 2026.