DHANA DAS Vs. PANDAV DAS

JUDGEMENT

(1.) PLAINTIFFS are in second appeal against the affirming decree of the learned subordinate Judge in a suit for partition. Plaintiffs had asked for partition of two items of Schedule 'a' and the 'b' Schedule property. The trial Judge gave a decree excerpt in regard to item No. 1 of Schedule 'a' by upholding the alienation by their father on 23-5-1961 (Ext. C) for Rs. 300 in favour of the Deity (defendant No. 2)represented by defendants 3 to 8. The lower appellate court having upheld that decree, the plaintiffs have filed this second appeal.

(2.) THE three plaintiffs are the sons of the defendant No. 1. There is no dispute that on 23-5-1961, the defendant No. 1 has alienated the item No. 1 of Schedule 'a' being Ac 0. 53 decimals of cultivable land to the defendant No. 2. The plaintiffs have sued for partition without asking for his alienation being set aside and the defendants 2, 3 and 4 who alone contested asked for deletion of this property from the hotchpot as it was not partible.

(3.) ACCORDING to Mr. Ramdas, learned counsel for the appellants, the disputed item of property belonged to the joint family and was not the exclusive property of the defendant No. 1. Prior to suit, in a proceeding under Section 145 of the Code of criminal Procedure their possession had been upheld. Since the defendant No. 1 had made the alienation by asserting exclusive title therein, the plaintiffs' interest had never been sold and they were not required to ask for a declaration that they were not bound by the alienation before laying claim for partition thereof. He next contends that the finding of legal necessity is not sustainable in law and as such the claim for partition must be decreed. Mr. Rath, on the other hand, contends that the plaintiffs are bound to obtain a declaration of their subsisting interest in order that the disputed property can be in the hotchpot.