KRISHNAKANTA DAS Vs. RENUBALA DAS

JUDGEMENT

(1.) THIS appeal is preferred by defendants 2 to 6, appellants, against a preliminary decree passed in a partition suit briefly in the following circumstances : plaintiff, respondent No. 2, instituted a suit for partition against the principal defendant, respondent No. 1, and the present appellants of certain joint immovable and movable properties claiming 1/3rd share therein. We need not repeat the facts of the case in details for those have been set out by the learned trial Court. The case briefly, however, of the plaintiff is that after the death of the father of the respondent Nos. 1 and 2 their mother shashibala inherited the disputed properties in limited interest as widow. But before her death she surrendered her life estate to the extent of 1/3rd share each according to the wishes of the father in favour of both the respondent Nos. 1 and 2 and also the present appellants who were the sons and daughters of another daughter who died during the life-time of her husband, haridas. Thus the respondent Nos. 1 and 2 and the present appellants while being in joint possession in respect of the disputed properties according to their l/3rd undivided share each executed an agreement for appointment of two arbitrators for effecting partition of the disputed properties by metes and bounds according to 1/3rd share each of the parties which, however, did not materialise. The respondent No. 1 who also had the custody of all the disputed movable properties refused to effect any amicable partition in spite of demand according to the respective shares of the parties.

(2.) THE suit was contested by the respondent No. 1 and in the written statement apart from the general denial of material allegations of the plaint she asserted that the present appellants being the heirs of a pre-deceased daughter were not entitled to any portion of the disputed properties as reversioners of the last full make owner. Her further specific case was that the immovable properties in disputed were acquired by the mother and not the father. The present appellants also appeared and supported by their written statements the case of the plaintiff. But unfortunately that written statement, it is undisputed, was not accepted by the Court as they failed to pay costs to the plaintiff for acceptance of the written statement. Upon the respective pleadings of the parties the main question for consideration was whether there was surrender of the life estate by the mother of the respondent Nos. 1 and 2 and in any case, whether there was any family arrangement entered in to by the parties under which the present appellants were entitled to 1/3rd share of the properties. The learned trial Court took the view that there was neither any surrender nor any family arrangement and thus the appellants were not entitled to any share but the plaintiff-respondent Nos. 1 and 2 were each entitled to 1/2 share in the disputed properties. The learned trial court also found that both the immovable and movable properties were acquired by the father and not by the mother and the movable properties except the sale-proceeds of Dacca house for which there was no evidence in all other movable properties in existence the respondent No. 2 was entitled to 1/2 share in all such properties. Accordingly, the learned trial Court passed the preliminary decree on declaration of the above shares of both the respondent nos. 1 and 2. That is how, in short, the appellants felt aggrieved and preferred the present appeal.

(3.) THE main question, if not the only question, is whether firstly, there was any surrender by the widow mother of the respondent Nos. 1 and 2 in favour of present group of appellants and the respondent Nos. 1 and 2 to the extent of 1/3rd share each; secondly, in any case, whether there was any family arrangement entered into by all the parties under which the appellants were entitled to 1/3rd share in the disputed properties.