GOPAL NARAIN Vs. DURGA PRASAD GOENKA

JUDGEMENT

(1.) Seth Dina Nath Goenka, the propositus, grandfather of plaintiff No. 1 in this case, died somewhere in or about the year 1907, leaving behind him, his widow, Smt. Sukh Devi, who is defendant No. 8 in this case, and Durga Prasad, defendant No. 1. He left considerable properties, both movable and immoveable, which were coparcenery properties, wherein his sons had acquired interest by birth. Son, Sat Narain died on March 13, 1966, leaving behind him his son Gopal Narain, plaintiff No. 1 and grandson Brji Narain, plaintiff No. 2 minor son of Gopal Narain, both forming one branch of the family. Son Durga Prasad is defendant No. 1, who along with his son Shri Narain, defendant No. 2, and grandsons, defendants Nos. 3, 4 and 5 from another branch, which for convenience of reference is described herein as 'defendants first party'. Son, Ganga Dhar had died earlier in 1942, leaving behind him his sons, Suraj Narain, defendant No. 6, and Rajinder Kumar who had also died in 1946, leaving his wido, Rama Bai, defendant No. 7, both defendants Nos. 6 and 7 are jointly referred to herein as 'defendants second party, being the third branch. Defendants Nos. 9 and 10 are sisters of plaintiff No. 1 being daughters of late Sat Narain and they have been described in the plaint and shall be described herein, as defendants fourth party. The properties continued to be joint family properties and the plaintiffs are in joint possession of the same along with other members of the joint family.

(2.) Defendant No. 1 is alleged to have been lately mismanaging the properties, which circumstance is said to have given rise to quarrels and disputes between the family members. The plaintiffs, therefore, filed the present suit praying for a decree of partition of the properties mentioned in the first and second schedules attached to the plaint; and for separate possession of one-third share therein. They further stated in the plaint that defendant No. 8, the mother of defendant No. 1 is in law entitled to a share equal to that of a son. The share of the plaintiffs, as also of the defendants first party and defendants and second party accordingly would be 1/4th each; but as defendant No. 8 was stated to be not claiming any share in the properties, the share of plaintiffs was said to be 1/3rd in the whole of the property and defendants first party will have another 1/3rd share, while defendants second party will another 1/3rd share in the property.

(3.) Smt. Sukh Devi, defendant No. 8 in her written statement contested the averments made in the plaint and stated that it was incorrect that she did not claim any share in the joint Hindu family property. She was in law entitled to 1/4th share in the partition between the sons and she positively claimed her said share to be given to her at the time of partition. She denied that the plaintiffs were entitled to 1/3rd share in the joint family property as claimed by them. Defendant No. 6 in his written statement denied that the plaintiffs were entitled to 1/3rd share in the property. Defendants Nos. 1 to 5 (first party) in their written statements stated that they have no objection if they were given 1/3rd share in the property, to which they were entitled, the other 2/3rd share being that of plaintiffs and the other defendants jointly.