PURNABASHI MISHRA Vs. RAJ KUMARI MISHRA

JUDGEMENT

(1.) This A.H.O. is against the judgment of the learned single Judge dismissing the appeal of the defendants thereby upholding the judgment of the court below decreeing the plaintiff's suit for partition. The present appellant happens to be the widow of defendant Tarakanta who died during the pendency of the first appeal.

(2.) One Mandhata was the father of the present parties. The property relates to village Themra which fell to the share of Mandhata in a partition among his co-sharers, other taking their respective shares in other villages. Plaintiff, the youngest son of Mandhata filed the suit against his immediate elder brother Tarakanta (defendant No. 1) for partition. Plaintiff's case is, Mandhata died in the year 1935 in a State of jointness when the plaintiff was nine years and defendant No. 1, the Karta of the family, managed its affairs. The plaintiff served in the police department from the year 1938 onwards and remained outside being posted at different places. After retirement from government service when the plaintiff demanded his share in the property, the defendant denied the claim on the plea that there was a partition in the year 1938 in the family. The plaintiff collected various records relating to the properties in question and found the defendant to have been entered into sale transactions without authority and knowledge of the plaintiff. It was also discovered that while managing the joint family affairs the defendant had acquired properties in his own name though such acquisition was from the joint family fund. The defendant in the written statement pleaded a full-fledged partition in 1938 between the plaintiff and the defendant, which was, according to him evidenced by a document. He denied that the plaintiff and the defendants lived jointly while plaintiff was serving outside. He denied the properties in his name having been purchased from the joint family fund during the jointness.

(3.) The lower court on the issue of previous partition held that there was no such partition by metes and bounds and decreed the suit. With regard to issue No. 4, i.e. whether the 'E-II' schedule property was the self-acquired property of defendant No. 1, it held the issue against the defendants and directed partition of the same. In the first appeal before this Court, the learned single Judge upheld the decision for partition by metes and bounds.