KOTISWAR MUKHERJEE Vs. PARESH NATH MUKHERJEE

JUDGEMENT

(1.) The plaintiffs appellants and the defendants respondents claim Mohesh Chandra Banerjee as their predecessor-in-interest. Mohesh had one son Bamapada through his first wife, and four sons Debipada, Umapada, Khagendra and Haripada through his second wife. The plaintiffs are the descendants of Bamapada. The defendants axe the descendants of the other four sons of Mohesh. The plaintiffs filed the present suit out of which this appeal arises for partition of certain items of property which they claimed to be the joint properties of the family. The plaintiff further claimed that Mohesh had by a deed of gift in favour of his son Bamapada given six annas interest in fifty-two items of properties including the properties described in the schedule to the plaint. They accordingly claimed a six annas interest in the properties under the deed and an additional two annas interest as heirs of Mohesh.

(2.) Two sets of written statements were filed by the defendants - one set by defendants 9 to 11 who were the daughters of Haripada, the youngest son of Mohesh; the other set was filed by defendants 1 to 8, who were descendants of the three other sons of Mohesh. It is not necessary to refer to the allegations contained in the two sets of written statements separately as in the main the defence is similar. Various objections had been raised by the defendants. It was contended that the alleged deed of gift had never been executed by Mohesh; even if there had been one, it had not acted upon. Further, the properties included in the plaint had not been the subject-matter of the deed of gift. The plaintiffs' right to claim partition was further contested on the ground that there were various other items of property held jointly by the members of the family which had been excluded by the plaintiffs. There were other necessary parties in whose presence alone the suit could be tried out.

(3.) The learned Subordinate Judge had decreed the suit in a preliminary form. The plaintiffs' claim based upon the alleged deed of gift has been dismissed. The plaintiffs have appealed to this Court.