JAGANATH MISRA Vs. LOKANATH MISRA

JUDGEMENT

(1.) Defendants 1 to 4 in a suit for partition have preferred this appeal. The case of the plaintiff is as follows ; Plaintiff and defendants 1 and 2 are the sons, defendant No. 3 is the daughter and defendant No. 4 is the widow of late Purnananda Misra. The properties described in Schedules A and B (Moveable and immoveable properties respectively) belong to Purnananda Misra. Defendant No. 3 is married and living in her husband's house. Plaintiff and defendants 1, 2 and 4 are living in joint mess and property and there has been no separation between them either before or after the death of Purnananda. Plaintiff is a Government servant and is living outside the village with his family and defendant No. 1 is acting as manager of the joint family properties and defendants 1, 2 and 4 are enjoying the moveable and imrnoveable properties of the joint family. As the defendants refused to give due share to the plaintiff out of the income of the joint 'family properties the plaintiff filed the suit for partition of the joint family properties in order to get his share. The plaintiff claims 3/10th share out of the properties.

(2.) Defendants 1, 2 and 4 have filed a joint written statement and have contested the suit and defendant No. 3 has been set ex parte. The case of defendants 1, 2 and 4 is as follows: Raghunath Misra, the grandfather of plaintiff and of defendants 1 to 3 was the common ancestor. He had three sons, namely, Chandramani, Purnananda and Padmanav. There was no partition, at any time between the sons of Raghunath in respect of the properties left by Raghunath, though there was severance of status and each of the branches is possessing some lands separately according to convenience. The immovable properties described in Schedule A are mostly ancestral properties of Purnananda. Hence the suit is bad for non-joinder of parties as the branches of Chandramani and Padmanav have not been impleaded as parties in the suit. The suit is also bad as all the properties have not been brought to hotchpot and as the properties described in Schedule A do not belong to Purnananda exclusively, those properties cannot be partitioned. The moveable properties described in Schedule B (which are the properties of the shop) belong to defendants 1 and 2 in which the plaintiff has no interest at all. So these properties should be left out of partition. Some of the properties mentioned in Schedule B belong to third parties, who had kept their properties in the shop of defendants just before the filing of the suit in order to save those from the 'flood havoc. So the plaintiff cannot claim any interest in those properties. The owners of those properties have also filed separate petitions for taking back their properties. Out of the properties described in Schedule A some are acquired in the name of defendant No. 4 and as such the plaintiff has no interest in these properties and he cannot claim partition of those properties. Defendants' further plea is that the plaintiff was always living in the house of his 'father-in-law and therefore in January, 1961 the plaintiff took Rs. 3,000/ from Purnananda 'towards relinquishing his share of interest in the joint family properties and Rs. 500/- towards his share in the shop. The plaintiff relinquished all his interest in the joint family properties and in the shop and left his father's place with some moveable properties. Thereafter the defendants are living jointly and as the old house was damaged, they have constructed a new building out of their own 'funds. The plaintiff has got no interest in the said building. As the plaintiff has already got separated and taken money towards his interest in the properties, he has got no cause of action to bring this suit.

(3.) In the trial court as many as 15 issues were framed. Parties adduced both oral and documentary evidence. On behalf of the plaintiffs, four witnesses were examined and defendants examined 16 witnesses. The trial court after considering the evidence held, that there had already been partition between Purnananda and his other co-sharers and there was no need to make the cosharers of Purnananda parties in the suit; and that there was no partition by metes and bounds between the parties as claimed by the defendants and hence the plain- tiff is entitled to claim partition. Regarding the shop, it was held that it is the joint family property and the plaintiff has got his interest in the articles kept in the shop and that the outsiders who claim the moveable properties have no claim and those properties are also joint family properties. On these findings the suit of the plaintiff was preliminarily decreed in part giving the plaintiff 6/25 share out of the properties which Purnananda had got as his ancestral properties and l/5th share out of the other properties in Schedule A (except the properties, purchased by defendant No. 4 under Ext. L/l). Now the defendants have challenged the above judgment and decree of the Subordinate Judge. The plaintiff has also filed a cross-objection with respect to the properties purchased under Ext. L/l from which he has not been given any share.