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(1.) It is clear that the burden lay on the defendants to prove that the plaintiff who was admittedly a tenant-in-common with them till March 1882, was excluded from enjoyment of the property. The only fact proved is that the plaintiff, living an immoral life with her paramour, refused to live with the defendants and thenceforward supported herself without recourse to the family property. It is impossible to hold that refusal or non-participation, on the part of the plaintiff, amounts to or is any proof of ouster or exclusion by the defendants. There is no other evidence to show that she abandoned her interest to the knowledge of the defendents.
(2.) An attempt is made to support the decree of the Subordinate Judge by contending that a widow who has been guilty of adultery after her husband's death ought not to be allowed a partition of the property by metes and bound & inasmuch as presumably she would not use her share for the purposes for which property ought to be used by a widow. In our opinion a widow, being a tenant in-common, is entitled to partition as a matter of right and the Courts have no discretion in the matter. The rights of the other widows are in no way prejudiced by a partition because, on the death of the divided widow, her share devolves on the surviving widows as the then nearest heirs of the husband. If we had a discretion in the matter we see no reason why we should not use it in favour of the plaintiff seeing that she cannot live with the other widows.
(3.) The decree of the Subordinate Judge is reversed and that of the District Munsif restored with costs in this and the Court below.;
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