DAMODAR MISRA Vs. BANAMALI MISRA

JUDGEMENT

(1.) THIS appeal filed by defendant No. 1, Damodar Misra, arises out of a suit for partition filed by his brother, the plaintiff Banamali Misra against defendant No. 1 and the mother defendant No 2 Malati Dibya in respect of the suit properties mentioned, in plaint schedule 'b', 'd' and 'f' The defence of defendant No. t appellant herein is that the plaintiff was in the management of the joint family properties and therefore he was liable to render accounts; it was also contended that defendant No 2 Malati Dibya is not entitled to any share as she was not the widow of their father as alleged. The material issues raised before the trial Court were Issues Nos. 3 and 6 which are these: issue No. 3: Is the defendant No. 2 the married wife of late Chintamani and the mother of the plaintiff and defendant No. 1? issue No. 6: Is the plaintiff liable to render accounts of the income of joint family properties and of all sums sent by defendant No. 1 to plaintiff during the last 17 years us claimed?

(2.) THE trial court held that defendant No. 2 Malati Dibya was the married wife of late Chintamani Misra, and mother of the plaintiff and defendant No. 1; that the plaintiff is not liable to render accounts as claimed by defendant No, 1. Accordingly, both the said issues were decided against defendant No. 1, appellant herein.

(3.) IN this appeal, the only point urged on behalf of the defendant-appellant was whether the plaintiff was liable to render accounts. The defendant-appellant's case against the plaintiff as pleaded in the written statement was this. The plaintiff used to keep all the usufructs and income of the joint family properties; he has not rendered any account of the same, nor given any share to defendant No. 1; the plaintiff had misappropriated the income of the family properties to his own use and also to the use of his wife; the plaintiff is liable to render accounts before partition is effected; in order to defraud this defendant from getting his legitimate share of the joint family properties and the past income, the plaintiff has cleverly filed this suit.