TARAPADA ROY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal at the instance of the plaintiff-appellants arises out of a suit for declaration that the plaintiff no. 1 has 2 annas share, plaintiff no. 2 four annas share, plaintiff no. 3 four annas share and the plaintiff no. 4 two annas share separately in the properties described in the schedule Ka and that the plaintiff no. 1 has eight annas share in the properties described in schedule Kha and that the Revisional Settlement Record to the contrary is erroneous and for temporary injunction. The Ka schedule properties are all settled raiyati interest and the Kha schedule properties are also all raiyati lands. The case of the plaintiffs is that the plaintiff no. 1 and his full brother Shyamapada Roy were members of a joint family governed by the Mitakshara School of Hindu Law. After separation from each other, the plaintiff no. 1, Tarapada Roy, obtained the properties of schedule Ka separately and specifically. The plaintiffs nos. 2 and 3 are the sons of plaintiff no. 1. They also while in joint ownership and possession with their father as co-parcener in respect of the ancestral property, separated from each other on 1st December, 1954. The proforma defendant no. 2 is the wife of plaintiff no. 1 and mother of plaintiffs nos. 2 and 3. As there was a partition between the co-parceners the proforma defendant no. 2 was entitled to 4 annas share in the joint family property. It is alleged that after the said partition the parties were enjoying and possessing the properties separately and specifically. In the revisional settlement the shares of the parties were not properly recorded and therefore the suits were filed for correction of the record-of-rights and for declaration of their respective titles. On 15th July, 1960, it has been held by the Revenue Officer of Lalbagh Foxe's Kuti Centre of the Estates Acquisition Department, that the lands of the Khatians held by the plaintiffs are in Khas and they are jointly entitled to retain 75 bighas of agriculture lands and 45 bighas of non-agricultural lands in Khas possession whereupon the present suit was filed.

(2.) The State Government filed written statement stating, inter alia, that the plaintiffs, and the proforma-defendant no. 2 constituted one undivided joint family living in and there has been no separation. The plaintiff no. 1 is the Karta of the said joint family and he has been functioning as such. It is not a fact that the plaintiffs have separated in December 1954. Therefore it is stated that the plaintiffs and the proforma-defendant no. 2 are entitled to one unit and can retain only 25 acres of agricultural land and 15 acres of non-agricultural lands as one unit under section 6 of the West Bengal Estates Acquisition Act.

(3.) Mr. P. N. Mitter on behalf of the appellants contended that he status of the Mitakshara family was separated in December 1954. As soon as the unequivocal declaration of his intention to separate himself from the Mitakshara family is communicated; it is not necessary at all in the Mitakshara School of Hindu Law to separate actual possession. It is sufficient to have the joint status an according to the Mitakshara Law, separation of the joint status constitutes partition. Mr. Mitter referred to A.I.R. 1964 S.C. 136 (Raghavamma v. Chenchamma) in support of his contention. Mr. Mitter further contended that if there was a minor who is co-parcener, even then the severance of joint status is possible and constitutes a partition. Mr. Mitter also relied upon the case reported in A.I.R. 1936 Bom. 290 (Dhyaneswar v. Anant) in support of his contention.