KIRITI MOHAN MONDAL Vs. SULEKHA MONDAL

JUDGEMENT

(1.) THIS first appeal is directed against the judgment and decree dated May 20, 1988, passed by the learned assistant District Judge, First Court, Kalna in Title Suit No. 85 of 1983 thereby decreeing the suit in part on contest in the preliminary form with declaration of share of the plaintiff/respondent to the extent of 4 annas in the suit properties mentioned in schedule ka to the plaint. The case made out in the plaint, in short, is that suit properties as described in the schedule to the plaint originally belonged to the father-in-law of the plaintiff, namely, Panchanan mandal (since deceased ). Out of the suit properties, some of those were acquired in the names of the defendant nos. 4 to 6. Late Panchanan Mandal died in 1347 B. S. leaving behind the husband of the plaintiff, namely Anadi Prasad (since deceased) and his three other sons i. e. , defendant nos. 1 to 3 and 3 daughters. The 4 sons acquired 4 annas share each after the death of Panchanan mandal. Thereafter, Anadi Prasad died leaving behind his wife, i. e. plaintiff and one daughter (since deceased) in 1351 B. S. The plaintiff got life interest in respect of the estate left by her husband and after introduction of the Hindu Succession Act, she became the absolute owner of her husbands estate. The suit properties left by Panchanan Mandal were never partitioned. Late anadi Mandal (since deceased) was the karta of the joint family. After his death, his next brother, namely Kiriti, became the karta of the joint family and he purchased some properties in the name of his 2 sons and the wife out of the income of the joint family and his 2 sons and wife have been made parties as defendant nos. 4 to 6. They did not exercise any act of possession in respect of the properties purchased in their names. The plaintiff/respondent felt inconvenience in joint possession of the suit properties and so she asked the defendants to make partition of the suit properties in vain. So, she was compelled to file the suit for partition of the suit properties with declaration of her share to the extent of 1/4th therein.

(2.) THE defendant nos. 1 and 4 to 6 are contesting the suit by filing a written statement denying and disputing the averments made in the plaint. They contended that the suit was not maintainable and bad for non-joinder of necessary parties. The suit properties as described in schedule ka and kha to the plaint were not at all joint properties as claimed by the parties. An amicable partition was held by a registered deed of partition in 1974. It was not true that some of the suit properties described in schedule ka of the plaint were purchased by Kiriti mandal in the name of the proforma defendant nos. 4 to 6. In fact, panchanan Mandal died in 1347 B. S. leaving behind four sons and three daughters. He did not possess much lands and he was not solvent. His youngest daughter, Binapani, was however married to a rich man, namely, Provash Ch. Kumar who later on helped panchanan to maintain his families. Provash Ch. Kumar had one wife and he was 50 years of age at the time of his marriage with binapani. But he had no issue. The proforma defendant nos. 4 to 6 acquired some properties out of the fund supplied by the father in law of the defendant no. 1. The defendant no. 1 and his brothers got some properties from their mother by virtue of a deed of gift. Similarly, they acquired some properties from their sister, binapani Dasi. The defendant no. 1 also acquired some of the properties out of his own fund from his business. Such properties should not have been brought in the suit. So the suit should be dismissed.

(3.) UPON consideration of the evidence on record, the learned trial Judge decreed the suit in part declaring 4 annas share of the plaintiff in the suit properties as described in schedule ka to the plaint. No decree was passed with regard to movable properties described in schedule kha to the plaint. Being aggrieved by the impugned judgment and decree, the defendant no. 1 and 4 to 6 preferred this appeal.