CHUNILAL OJHA Vs. MUL SHANKAR OJHA

JUDGEMENT

(1.) This appeal was argued by Mr. M. Mohanty for the appellant, who alter placing the evidence of the appellant-plaintiffs witnesses and also that of most of the witnesses of the defendants and some of the material documents exhibited in the case raised the question of adducing additional evidence under Rule 27 of Order 41, C. P. C. Counsel for both sides were heard on this question and we have decided to direct the recording of additional evidence by the lower Court under Rule 27 of Order 41, C. P. C. as prayed for the appellant. We give below our reasons for this decision.

(2.) This is a simple suit for partition and other consequential reliefs between the parties who are all descended from a common ancestor as will be clear from the geneological tree shewn below : PURUSHOTTAM OJHA | | | | Lakhmishankar Narbheram Shyamjee (died without (died on 21-7-1934) (died in 1918) issue on 2-3-33) married Mani | Kumari defdt. 2/a Chunifal | (Plaintiff) | | Mulashankar Rasikchandra (defdt.1) (defdt.2) The original home of the parties is in a place known as Halvad in Kathiwar. Lakhmishankar and Narb-heram came to Cuttack sometime between 19051910, prospered very much in coal and other business and acquired considerable properties including valuable house properties in Cuttack Town. The plaintiff's case was that the family was always joint, that the business in Cuttack was built up out of the original joint family nucleus and that as there was no partition he was entitled to eight annas share of all the properties. The defendants' case was that sometime in 1913 Lakhmishankar and Narbheram separated from, their brother Shyamji who continued to remain in their ancestral village of Halvad in Kathiwar -- that the Cuttack business was built entirely through the efforts of the two remaining brothers, namely Lakhmishankar and Narbheram and that consequently Shyamji's son Chunilal (plaintiff) had absolutely no interest in the Cuttack properties. The trial court accepted the aforesaid contentions of the defendants and dismissed the plaintiff's suit, holding that in view of the partition of 1913 between the plaintiff's father Shyamji and his two brothers the plaintiff cannot claim any share in the Cuttack properties.

(3.) From the above summary of the essential points in controversy between the parties it is apparent that the most important question for decision is whether Shyamji separated from his two brothers, Lakhmishankar and Narbheram as alleged by the defendants, or whether the three brothers remained joint and the joint family continued to exist even after the death of the brothers one by one. In the Settlement Khatian of the Current Settlement Records (1929-32) the name of the plaintiff was jointly recorded along with those of Lakhmishankar and Narbheram in respect of most of the Cuttack properties of the family. According to the defendants, however, the settlement entries were made fraudulently with the connivance of their dishonest servant, one Batakrushna Sahu (since dead). Apart from the current Settlement entry no other document has been proved before the lower court in which the name of the plaintiff Chunilal is associated with that of his uncle Lakhmishankar or Narbheram or his cousin Moolshankar (sic) in any of the transactions relating to Cuttack properties. The plaintiff has therefore prayed for leading additional evidence by proving three sale deeds in which his name has been associated in respect of the Cuttack properties though he was at that time only a minor. The importance of these documents in the litigation will be clear from the following summary of the transactions which they purport to represent.