- (1.) These appeals filed against the judgment dated 4.4.1987 in Title Appeal No. 57 of 1975 passed by VIth Additional District Judge, Dumka whereby and where under he allowed the appeal in part and held that respondent No. 2 Kalia Mandalain (Original Appellant of S.A. No. 204/87) is not entitled to get any share in suit property, whereas plaintiff and defendant No. 1 entitled to get 1/2 share in suit property.
(2.) It is relevant to mention that S.A. No. 223 of 1987 (P) was filed by Bharan Mandalain (defendant No. 1) who died during the tendency of present appeal and in her place her daughter Mangll Devi was substituted. From the perusal of record of S.A. No. 204 of 1987(P), it appears that plaintiff and defendant No. 2 died long ago and their legal heirs substituted vide order dated 10.3.1998. However, it appears that substituted appellant of S.A. No. 223 of 1987(p) had not taken step for substitution of legal heirs of plaintiff and defendant No. 2 i.e. respondent Nos. 1 and 2. Under the said circumstance. S.A. No. 223 of 1987(P) stand abated against respondent Nos. 1 and 2. Accordingly, S.A. No. 223 of 1987(P) is dismissed.
(3.) S.A. No. 204 of 1987 (P) admitted on 16.11.1987 on the following substantial question of law: I. Whether a plaintiff can be given a share more than what was claimed by her? II. Whether the view taken by the Courts below that the property of Kapoor Baid (wrongly mentioned as Ganauri) with be inherited by survivorship and not according to the Hindu Succession Act is erroneous in law? It is submitted by Sri. Lalit Kumar Lal, learned counsel for the appellants, that the suit property was a self acquired property of Kapoor Baid and Satish Bald and the same was recorded in their exclusive names in the records of rights. It is further submitted that Kapoor Baid died in the year 1935 thus, after his death the share of Kapoor Baid in the suit land would devolve in original appellant (Kalia Man dalain) by law of inheritance. It is submitted that the learned appellate Court committed serious illegality by holding that the suit land devolved in Satish Baid by survivorship, therefore original appellant is not entitled to get any share in it. It is further submitted that the original plaintiff (respondent No. 2) claimed only 1/4th share in the suit property, but the appellate Court granted relief of 1/2 share i.e. beyond the claim made by her in the plaint. Accordingly, it is submitted that the impugned judgment of the appellate Court cannot be sustained.;