DWIJAPADA MONDAL Vs. BHOLANATH MONDAL

JUDGEMENT

(1.) This appeal arises out of a suit for partition. The suit was instituted by the plaintiffs-respondents who claimed one-sixth share in the properties in suit and alleged that the remaining share was owned amongst the defendants in different shares. It was admitted by both the parties that the original defendant 1, Debendra Mondal, who died during the pendency of this suit in the trial Court had eight annas share in the disputed properties. His sister's son who was a minor named Haradhan Ghose was substituted in his place.

(2.) The suit was contested in the trial Court by deceased Debendra Mondal and defendants 2 and 3 their main contention being that the suit was bad for partial partition. It was also contended by them that the representation of minor Haradnan Ghose was not made in accordance with law. Some other objections were also raised by the contesting defendants in the trial Court with which we are not concerned in the present appeal. All these contentions were negatived by the trial Court and a preliminary decree for partition was made. Thereafter an appeal was preferred before the lower appellate Court by defendants 2 and 3, but their appeal was dismissed. So the two last named persons have preferred this second appeal.

(3.) Two objections were urged on behalf of the appellants in this appeal. The first objection was comparatively of a minor nature. It was contended that the Courts below should have upheld the contention of the appellants that the suit for partition was bad on account of partial partition. This point appears to have been argued at some length before the lower appellate Court where the appellants contended that the plaintiffs of the partition suit have not brought into the hotchpot some other properties in which the parties to the partition suit were jointly interested. The lower appellate Court, however, found as a fact that the so-called properties which have been left out belonged not only to the present parties but also to some other co-sharers of theirs who, how-ever, have admittedly got no interest in the properties under partition. That being the case, it is not at all necessary that the properties which are alleged to have been excluded from the scope of the partition suit should have been brought into the hotchpot in my judgment, the lower appellate Court is perfectly justified in holding that the suit was not bad on account of a prayer for partial partition.