DHANPAT RAI Vs. SHAISH KUMAR

JUDGEMENT

(1.) THE petitioners are aggrieved by an order dated 2nd February, 2008 whereby the learned Civil Judge while deciding an issue about maintainability of the suit for partition though observed that the plaint as well as the relief clauses were not in accordance with law, however, instead of rejecting the plaint he observed that since suit was instituted long ago, i. e. , on 8th April, 1987, the plaintiff would suffer irreparable loss if the plaint was rejected so he gave plaintiff an opportunity to file an application for amendment of the plaint and reliefs. Hereinafter parties shall be referred as plaintiffs and defendants. Petitioners are defendants before the Trial court.

(2.) A perusal of the plaint filed by the plaintiffs would show that the plaintiffs titled the suit as a suit for partition. However, in the body of the suit, the plaintiffs mentioned that their father who died in year 1968 left behind a 'will' in respect of property No. B-IV/172, Amar Colony bequeathing l/7th equal share on each of his son and one daughter, if she was still unmarried on the date of his death. However, the property had certain charges which were mentioned in the 'will' itself and it was provided in the 'will' that after his demise the property would be valued among his sons and out of his 7 sons, one who pays the charges and the balance consideration to rest of the sons and to unmarried daughter Medha Rani (if she was still unmarried) would get the property.

(3.) THE plaintiffs alleged that it was agreed among all the brothers that the property in question would be purchased by the plaintiff No. 2 and plaintiff No. 2 was asked to discharge all the encumbrances of the property. He discharged the encumbrances and finally a document was prepared by defendant Nos. 1 to 5 and it was settled that a sum of Rs. 1,20,000/- would be paid to rest of the legal heirs and the property would be transferred in the name of the plaintiff No. 2. The plaintiff No. 2 was ready and willing to preform his part of agreement but defendant nos. 1 to 5 requested plaintiff no. 2 that the transaction as per agreement should be completed after mutation was effected in the name of all the sons. Thereafter, the mutation was effected in the name of all sons. Defendants No. 1 to 5, after getting the mutation effected, made an application to Landdo seeking permission to sell their share.