JAGAT KRISHNA DAS Vs. AJIT KUMAR DAS

JUDGEMENT

(1.) BOTH these appeals arise out of Title Suit No. 37 of 1955. One Ram Chandra Das (died in 1921) had three sons - Raghabananda Das (died in 1932), Bhubanananda (original defendant No. 4 and died during the pendency of the suit) and Bichitrananda (defendant No. 5). Suchitra (defendant No. 6) was the widow of Raghabananda and died after the disposal of the suit. On the death of Bhubanananda, his legal representatives were substituted as defendants 4 to 4(e). Raghabananda had three sons -Rashakrushna (defendant 3), Bankim Krishna (defendant-2) and Jagat Krishna (defendant-1) Sarojini (plaintiff-2) was admittedly married to defendant-1 in 1948. Ajit (plaintiff-1) is the son and Madhuchhanda (plaintiff-3) is the daughter of defendant No. 1 through plaintiff No.

(2.) MADHUCHHANDA was born in 1953. The plffs. filed this suit in forma pauperis on 23-8-1954 for partition and for maintenance. They aver that Basanti (defendant-7) is the concubine of defendant-1. Defendant-7, Kalyankumar (defcndant-8), Sarat Kumar (defendant No. 9) and Asit Kumar (defendant-10) had not been originally impleaded as parties to the suit. By an amendment, they were made parties on 11-3-1960. The plaintiffs" case is that in 1960-61 defendant-1 developed intimacy with defendant-7, who is the daughter of a prostitute. From 1951 onwards defendant-1 lived with defendant-7 and deserted the plaintiffs without either maintaining them or paying any sum, towards maintenance. A schedule properties mentioned in the plaint are the joint family properties. It may be noted that Item No. 1 of Schedule A refers to the residential building at Dagarpara ire Cuttack town. B schedule of the plaint is the self acquired property of Raghabananda. Plaintiff-1 is entitled to 1/27th share in schedule A and 1/9th share in Sch. B properties. So also plaintiff-2. They claim maintenance of Rs. 3600/- at the rate of Rs. 100/ per month from August 1951 to August 1954. Maintenance also is claimed at the same rate pendente lite till the disposal of the suit. The plaintiffs claim Rs. 25/- per month more for the educational expenses of plaintiff-3 and a maintenance of Rs. 25/- per month for plaintiff-3 from the date of the disposal of the suit till the date of her marriage. They also pray that the properties to be allotted to defendant-1 should be charged for the maintenance, marriage and educational expenses of plaintiff No. 3. 2. Defendants 1 and 7 to 10 took the plea that defendant 7 is the legally married wife of defendant No. 1. The second marriage took place on 15-4-1954. Defendants 8 to 10 are the sons of defendant-1 through defendant-7 during the continuance of a valid marriage. Defendant-7 is not the daughter of a prostitute. Defendant No. 8 was 3 years in February, 1958; in other words, he was conceived prior to the date of the institution of the suit (para 4 of the written statement of defendants 1 and 6). Defendant No. 1 took the positive stand that plaintiff-1 (2 ?) was quarrelsome, ill-treated his mother (defendant 6) and deserted him in March 1953. Despite the desertion, he used to make some payments towards maintenance of the plaintiffs and the plaintiffs are not entitled to any maintenance. So far as the properties in dispute are concerned, it is unnecessary to give the entire defence in detail as, an appeal, the controversy has been focused only on the residential house in Cuttack town mentioned in item No. 1 of Schedule A of the plaint. Defendants 1 and 2 took the stand that the residential house at Dagarpara was the self-acquisition of Kaghabananda in which deceased Bhubanananda and defendant-5 have no right, title and interest. Defendant-2 supports the case of marriage-between defendants 1 and 7. Defendant No. 3 in his written statement does not say anything with regard to the nature and character of the residential house at Cuttack town. The absence of any denial in the written statement amounts to acceptance of the averments in the plaint that the residential house at Dagarpara, Cuttack, is a joint family property and is partible amongst 3 branches. He also does not deny the case of evil association between defendants 1 and 7 and the story of concubinage. Original defendant-4 Bhubanananda claimed the Cuttack property as joint family property. He claimed certain properties as self-acquired, the details of which need not be mentioned as those are not the subject-matter in controversy in appeal. Defendant-5 claims the Cutback residential house as joint family property.

(3.) I will next take up F.A. 22/1961. The sole point for consideration in this appeal is whether the Cuttack properties are the self-acquired property of Raghabananda or of the joint family of all the three branches. Ramchandra retired in 1897. Raghabananda joined service as Sadar Kannngn-and Customs Head Clerk in 1897-98 on a pay of Rs. 60/-. In 1903 he was the Manager of Dompara. estate on a pay of Rs. 100/- per month. The disputed land with certain thatched rooms was purchased by Raghabananda in his own name by a. registered Kabala (Ext. J/5) on 16-12-1963 by a consideration of Rs. 273/-. Raghabananda was in a position to pay Rs. 273/- from his earning, in 1903. In para 17 of the written statement filed by defendant-5 on 3-4-1956, the plea in this regard may be quoted.