- (1.) The appellants and Tapeshari Kuer filed Title Suit No. 89 of 1972 renumbered as 22 of 1975 on the file of the court of III Additional Subordinate judge, Gopalganj, State of Bihar for partition of plaint/schedules 4 and 5 properties into two equal shares etc. One Bishni Mahto left behind him tow sons sheobaran Mahto and Ramyad Mahto. Tapeshari Kuer is the daughter of ramyad Mahto. Ramyad Mahto and Sheobaran Mahto while dividing their ancestral properties, kept/schedules 4 and 5 properties in joint enjoyment. On the demise of Ramyad Mahto, Tapeshari Kuer succeeded to the undivided share of Schedules 4 and 5 properties. She executed gift deed in favour of the appellants on 28/06/1965 bequeathing her undivided interest inherited from her father in respect of Schedule 4 properties and it is claimed that the appellants were put in possession of the same. The trial court by decree dated april 10, 1976 granted a preliminary decree with a declaration thus: ".. It is declared that the share of plaintiffs 1 and 2 together is half in the property mentioned in Schedule 4 of the plaint. It is further declared that the share of plaintiff 3 Mst Tapeshari is half in the property mentioned in schedule 5 of the plaint. The shares of the plaintiffs will be carved out at the time of final decree. Let a preliminary decree be prepared accordingly. "
(2.) The respondents carried the matter in appeal. Pending first appeal in the court of Third Additional District Judge being Title Appeal No. 41/10 of 1976- 80. Mst Tapeshari Kuer died leaving behind her four sons by name Gaya prasad, Chandradeo, Videshi (issueless) and Adalat Prasad. But unfortunatelynone have been brought on record. Yet the appellate court gave a finding that tapeshari Kuer is not the daughter of Ramyad Mahto and accordingly the appellant did not acquire any interest in the undivided interest of Ramyad Mahto under the gift deed. Accordingly the suit was dismissed. In Second Appeal No. 51 of 1981 of the appellants, the High court held that: ".. The heirs of Mst Tapeshari have not been brought on the record. In their absence it is not possible to give a finding that Mst Tapeshari died when the matter was pending in the court below and the decree, therefore, is a nullity. "
(3.) The High court accordingly dismissed the second appeal on 28/10/1986. Thus this appeal by special leave.;