RAKESHRI PRASAD HAJELA Vs. SMT. BITTO AND OTHERS

JUDGEMENT

(1.) This appeal has been filed by the defendant No. 4. It arises out of a partition suit filed by Sri Mahesh Prasad, who is respondent No. 3 in this appeal. The facts giving rise to this appeal in brief are as follows:-

(2.) The learned trial court held f that the properties Nos. 3 to 5 mentioned in the schedule 'A' of the plaint were the self acquired properties of the defendant No. 1 and were not liable to be partitioned. In regard to other properties the suit for partition and possession of ⅛th share of the plaintiff therein was decreed. The trial court also held that no compromise as alleged by the defendant Nos. 3 and 4 in their written statement took place between the parties. While dealing with the plea for partial partition, the trial court observed that Raghunath Prasad being the father of the plaintiff and defendants No. 3 to 7 was the manager of the family and gave education to them and incurred expenses in their marriages. He also incurred expenses for running the family. The defendant Nos. 3 and 4 did not allege any fraud or misappropriation or improper conversion of any property by the Manager. The trial court placed reliance on the statement of Raghunath Prasad which was to the effect that whatever ornaments he received from his wife Smt. Triveni Devi and on the basis of partition decree passed in suit No. 75 of 1930, he had given the same in the marriages of his sons and that no ornaments and zamindari compensation; bounds were thus available for partition at the time of the filing of the present suit. The trial court also held that the sale proceeds of the shop sold in 1957 were also not available for partition at the time of the suit; hence the suit was not bad for partial partition.

(3.) Aggrieved by the said decision Sri Rikheshwar Prasad filed the first appeal No. 483 of 1964. The learned appellate court below on a consideration of the evidence, recorded a concurrent finding that no family settlement was effected between the parties on 31st Dec., 1960 as alleged by the appellant. The appellate court below also held that at the time of the institution of the present suit for partition the jewellery and money received on account of compensation and rehabilitation bends were not available for partition. It was held that the defendant No. 1 had to execute the sale deed, Ex. B-3 to pay off the joint family debts and to meet the legal necessity. It was, therefore, held that the said suit was not bad on account of partial partition. In regard to the cross-objection filed by the plaintiff, the appellate court below held that the properties Nos. 3, 4 and 5 were not joint family property but were the self acquired property of Raghunath Prasad and as such were not liable to be partitioned. The appeal and the cross-objections were, therefore, dismissed and the decree passed by the trial court was confirmed.