IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3170 OF 2009 (Arising out of SLP (C) No.24760 of 2007)

Lehja Bai (D) Thru LRs. ……. Appellant(s)

Vs.

Sewanti Bai & Anr.     ….… Respondent(s)  

J U D G M E N T  

R. V. RAVEENDRAN J.,

Leave  granted.  Heard.  This  appeal  is  by  the  defendants  in  a  suit  for  

partition and separate possession filed by first respondent.

2. This appeal arises out of a suit for partition. One Ganaram and his son  

Sahdeo constituted  a  joint  family.  Lehja  Bai  was  the  wife  of  Ganaram and  

mother of Sahdev. Ganaram and Lehja Bai had four daughters in addition to  

their only son Sahdeo. Sahdeo died intestate in the year 1972 issueless survived  

by his wife Sewanti Bai. Ganaram died in the year 1986.

3. Sewanti Bai filed a suit for partition and separate possession of her share  

in the joint family properties, in the year 1989. She impleaded her mother-in-

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law Lehja Bai as the first defendant, four sisters-in-law as defendants 2 to 5 and  

the State of Madhya Pradesh as defendant no.6. Defendants 2 to 5 resisted the  

suit  inter alia on the ground that the deceased Ganaram had left a will dated  

22.2.1983 bequeathing the suit properties in their favour.  

4. The suit  was decreed by the trial court  by judgment and decree dated  

21.12.1999 declaring that Sewanti Bai was entitled to 7/12th share in the suit  

schedule properties  and directing division by metes  and bounds through the  

Revenue Authorities. The trial court also declared that the will dated 22.2.1983  

was not valid nor binding on the plaintiff. Feeling aggrieved, defendants 1 to 5  

filed an appeal before the District Judge, Chhindwara (MP). In the said appeal,  

Sewanti Bai filed cross objections contending that she was entitled to mesne  

profits from the date of the suit to the date of possession. The first appellate  

court  by  judgment  dated  14.2.2003,  dismissed  both  the  appeal  and  cross  

objections thereby confirming the decision of the trial court.  

5. The trial court and the first appellate court proceeded on the basis that  

Ganaram and Sahdeo each had a half share in the suit schedule properties, that  

on the death of Sahdeo, his wife Sewanti Bai succeeded to his half share; that  

when  Ganaram  died  subsequently,  his  wife  Lehja  Bai,  his  daughter-in-law  

Sewanti Bai and four daughters (D2 to D5) each became entitled to 1/6th share

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in his half share; and that therefore, Sewanti Bai was entitled to the half share of  

Sahdeo plus 1/12th share from Ganaram’s share (that is, 1/6th of Ganaram’s half  

share), in all to 7/12th share. The trial court and first appellate court also held  

that defendants 1 to 5 each were entitled to 1/12th share.  

6. Defendants 1 to 5 filed a second appeal before the High Court wherein  

the only question that was raised was whether the courts below were justified in  

holding  that  Sewanti  Bai  was  entitled  to  7/12th share.  The  High  Court  by  

judgment dated 27.7.2006 allowed the appeal in part. It held that if there had  

been a partition of the joint family properties during the life time of Ganaram,  

then Ganaram, Lehja Bai and Sahdeo would have each got 1/3rd share in the suit  

schedule properties; that when Ganaram died, his wife, four daughters and son  

were each entitled to a 1/6th share in his 1/3rd share; that as his son Sahdeo had  

died, Sahdeo’s 1/18th share was further divided into two shares of 1/36th each  

and taken by his wife Sewanti Bai and mother Lehja Bai. Strangely, the High  

Court did not calculate or state what was the share of Sewanti Bai in the joint  

family properties or what was the share of Lehja Bai therein. The High Court  

neither  answered the substantial  question of law raised nor indicate  its  final  

‘decision’ in the matter except stating that the judgment and decree of the courts  

below was modified in terms of its judgment.

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7. The  said  judgment  is  challenged  in  this  appeal  by  special  leave  by  

defendants 2 to 5, as first defendant died after the decision of the High Court.  

The appellants contend that Lehja Bai was entitled to 21/36th share, Sewanti Bai  

was entitled to 7/36th share and defendants 2 to 5 were each entitled to 1/18th  

share. The contention of the appellant is that Lehja Bai was entitled to 1/3rd  

share in the joint family properties on her own account, 1/6th share as legal heir  

of her son, 1/18th share as legal heir of her husband, and 1/36th share as legal  

heir of her son in the share of Ganaram.

8. But during arguments, both counsel fairly agreed that the correct method  

of  calculation  would  be on  the  following basis  :  that  Ganaram and Sahdeo  

would be entitled to ½ share each in the joint family properties;  that on the  

death of Sahdeo, his half share would have devolved in two equal shares on his  

mother Lehja Bai and wife Sewanti Bai and consequently, each of them would  

have got 1/4th share; and that when Ganaram died, his half share would have  

devolved  equally  on  his  wife,  daughter-in-law,  and  four  daughters  equally  

which would mean that each of them would get 1/12th share as legal heirs of  

Ganaram’s share. It was therefore, agreed that Lehja Bai would have 1/4th +  

1/12th equal to 1/3rd share; that Sewanti Bai would also have 1/4th + 1/12th equal  

to 1/3rd share; and the four daughters (D2 to D5) would  each have 1/12th share  

together 1/3rd share.  

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9. As Lehja Bai died after  the decision of the High Court,  her one-third  

share will now devolve upon her four daughters equally. Consequently each of  

them will have another 1/12th share in addition to their 1/12th each, that is 1/6th  

each.

10. We accordingly allow this appeal and modify the judgments and decrees  

of  the  courts  below  holding  that  the  share  of  plaintiff  in  the  joint  family  

properties is 1/3rd (one-third) and the share of each of defendants 2 to 5 is 1/6th  

(one-sixth).  The  trial  court’s  decree  for  division  and  separate  possession  of  

plaintiff’s share remains undisturbed. Draw up preliminary decree accordingly.  

Parties to bear their respective costs.  

……………………….J [R. V. Raveendran]

………………………..J [J. M. Panchal]

New Delhi;  May 4, 2009.