In partition deed, father laid down conditions that father's exclusive share would go to son who would look after and perform death rites

Citation

AIROnline 2020 SK 49

SIKKIM HIGH COURT

MRS . MEENAKSHI MADAN RAI , J.

RFA - 10 of 2017 D/- 12 - 11 - 2020

Nil Kumar Dahal and Anr. v. Indira Dahal and Ors.

(A) Hindu Law - Ancestral property - Partition deed - Father of plaintiff during his lifetime

partitioned all movable and immovable property amongst his three sons, plaintiffs, his sons

from first wife and in favour of son from second wife - Father set aside some property for

himself during said partition, for his sustenance during his lifetime - On partition, share of

father became his separate property, and he was free to dispose it off as he thought fit including

bequeathing it by a Will - In partition deed, father laid down conditions that father's exclusive

share would go to son who would look after and perform death rites - Sons were referred

to as sons of first wife and sons of second wife and not by their own names - Said partition

deed considered as family arrangement, pertaining to partition of ancestral properties, as well

as bequeathment by Will - Fact that plaintiffs assisted their father financially, visited him at

intervals and behaved cordially with him, established - Plaintiffs and defendant step brother

entitled to equal share each of land of their father.

 (Paras 51 , 60 , 67) 

(B) Hindu Law - Ancestral property - Partition - Parties are Hindu Brahmins - Father divided

property amongst his three sons contemporaneously which was consented by all without any

objection - Held, parties were following Mitakshara School of Hindu Law - Since under

Mitakshara Law, father had power to divide family property during his lifetime and he

exercised his power.

 (Para 37)