HARIHAR SETHI Vs. LADUKISHORE SETHI

JUDGEMENT

(1.) Defendants 2 and 3 in a suit for partition, have preferred this First Appeal being aggrieved by the judgment and decree dated 25/11/1997 passed in T.S. No.52 of 1994 by the Civil Judge (Senior Division), Chhatrapur.

(2.) Bereft of all unnecessary facts, the case of the parties flowing out of their pleadings is narrated herein below:

(3.) After receiving notice of the suit, defendants appeared, and Defendants 1 to 4 filed a joint written statement admitting the relationship of the parties as well as joint ownership of the properties, morefully described in Schedules A and B of the plaint. It is asserted that after death of Bira, the eldest son (D-1) who was serving in Postal Department, was constrained to remain outside the village and plaintiff No. 1 being the second son, managed the joint family properties and virtually became the Karta of the family. It is stated that out of the joint family nucleus, he has purchased landed property morefully described in Schedule-C of the written statement in his name and in the name of his wife. The said properties were jointly cultivated by the defendants and usufructs were enjoyed by the joint family and as such, said properties were also liable for partition. It is also asserted that the properties described in Schedule A-1 of the plaint were purchased out of the amount procured after selling Stridhan properties belonging to Defendants 2 and 3 and the said properties cannot be construed as joint family properties and are not to be partitioned. On the basis of the aforesaid averments, the Defendants 1 to 4 claimed for partition of entire landed properties described in Schedules A and B of the plaint and Schedule C of the written statement. Defendants 5 and 6 who are the married daughters of Bira chose not to contest and were set ex parte. Defendants 7 to 10 are minor children of Defendant Nos. 2 and 3 and they also chose not to file any written statement through their father-guardian, hence a Court-guardian was appointed for them who filed a written statement simply denying the averments made in the plaint. Defendant No. 11 claims to be the adopted son of Baishnab Sethi, the brother of Raghu Sethi, who filed a written statement, inter alia, admitting the averments made in the plaint that the ancestral properties exclusively belonged to Raghu Sethi and he has no share. Defendant No. 12 is the wife of plaintiff No.1. She filed a separate written statement. Apart from supporting the plaintiff's case, it was further asserted that the properties morefully described in Schedule -C of the written statement are the self -acquired separate properties of her husband and herself. Defendant No.13 is the wife of Defendant No.3. In her written statement, she supported the plea taken by Defendants 1 to 4 and claimed that the landed properties described in Schedule -A-1 of the plaint are self -acquired properties of Defendant Nos. 2 and 3 and herself and are not liable for partition not being the joint family properties.