RAJESH KUMAR AGRAWAL Vs. VIRENDRA KUMAR AGRAWAL

JUDGEMENT

(1.) This is a plaintiff's appeal against the judgment and decree of IV Additional Civil Judge, Allahabad dated 31-5-1989 in Partition Suit No. 527 of 1986.

(2.) The plaintiff had filed a suit for partition claiming one-third share in house No. 124, K.P. Kackar Road, Allahabad, which is the property in suit. A declaration is also sought that the defendants Nos. 3 to 5 and late Aditya Prakash Agarwal had no right, title interest or share in house No. 124 aforesaid and inclusion of their names in the sale deed was simply Benami by their father surreptitiously and dishonestly. However, the expression 'Benami' was later on deleted by amending the plaint with the leave of the court. Cross-objection is filed by respondent Basant Kumar. He also challenged the decree and judgment of the court below and claims that the suit property is liable to be partitioned in three shares and not in seven shares as declared by the court below.

(3.) The plaintiff's claim in the suit was that on 27-2-1985 the defendant No. 1 acting for himself as well as for the plaintiff and defendant No. 2 with the funds of the plaintiff and defendants Nos. 1 and 2, lying at their credit in the said firm, purchased, the suit property from its owner Smt. Saran Kumari Verma for a sum of Rs. 1,80,000.00 as the personal property of the plaintiff and defendants Nos. 1 and 2. The purchase was not by the firm or for any purpose of the firm. In purchasing the property the defendant No. 1 with dishonest motive and surreptitiously got the names of defendants Nos. 3 to 5 and late Aditya Prakash Agarwal also entered in the sale deed as co-purchasers of the property along with the plaintiff and defendants 1 and 2. The said defendants did not contribute even a single paise towards the purchase money and for that reason they have no right, title, interest or share in the house. Defendant No. 1's action of including his sons in the sale deed as co-purchasers has given a reasonable apprehension to the plaintiff that the house cannot be kept joint any more. Accordingly the plaintiff is said to have asked the defendants Nos. 1 and 2 to partition the house in three shares.