NARASINGHA CHARAN SAHU Vs. LOKANATH SAHU AND ORS.

JUDGEMENT

(1.) THIS is a Letters Patent Appeal filed by Defendant No. 1 Narasingha Charan Sahu (AHO 56/75) from the judgment of a Single Judge of this Court dated 12 -9 -1975 reversing the judgment and decree of the Subordinate Judge, Berhampur, in part, in a partition suit. The suit (T.S. No. 34 of 1971) had been filed by the Plaintiff Lokanath Sahu against his brother Narasingha Charan Sahu (Defendant No. 1), his wife Saraswati Sahuani (Defendant No. 2) and Manikya Sahuani (Defendant No. 3), the mother of both Plaintiff and Defendant. No. 1.

(2.) BRIEFLY the Plaintiff's case is thus: Laxman Sahu the father of the Plaintiff and Defendant No. 1 died in 1942. Then Defendant No. 1 was nine years old. The Plaintiff is a posthumous child. The property of the family initially was the residential house (item No. 1 of schedule A) and a shop named Ganesh Bhandar (item No. 1 of schedule B). As the widow could not run the shop her brother Kali Charan (p.w.2) came to their rescue, purchased the stock for Rs. 5,000/ - and ran it with the understanding to pay Rs. 50/ - per month to Defendant No. 3 towards bonus and goodwill of the business. The widow supported the family by money -lending supplemented by the money she got monthly from her brother in running 'Ganesh Bhandar'. Defendant No. 1 on attaining majority became the Karta of the joint family and under an agreement (Ext. G/1) between himself and p.w. 2, the maternal uncle dated 30 -4 -1955, he (Defendant No. 1) purchased the stock of Ganesh Bhandar from p.w. 2. Yet p.w. 2 remained connected with it till 1962. Defendant No. 1 as the Karta of the joint family took over management of the money -lending business although it continued in the name of Defendant no 3 as before. Defendant No. 1 while acting as Karta and running the joint family business acquired four houses included in schedule 'A' and a press named "Ganesh Printing Press" included in schedule 'B'. The properties liable for partition are described as follows:

(3.) DEFENDANT No. 1 contested the claim. According to him the parties were no longer members of a joint Hindu family: that the properties described in items 2 and 3 of schedule A and items 1 and 2 of schedule B of the plaint, namely, Ganesh Bhandar and Ganesh Printing Press are his self -acquired properties while items 4 and 5 of schedule A are his wife's self acquisitions purchased from her stridhan. The money lying in deposit in his accounts are exclusively his own. The joint family had neither any nucleus nor any family business as alleged. He never took management of the alleged family business. Rather. Defendant No. 3 who was having money -lending business kept the entire income to herself and with that started a book -shop named "Bidya Bhandar" benami in the name of her brother Kalicharan and therefore that should be taken as a joint family concern. Defendant No. 3 had also kept with her about 100 tolas of gold and a cash of about Rs. 2,500/ -. The money lying in deposit in the accounts of the Plaintiff and sister Jamuna as well as the gold and cash of Rs. 2,500/ - with Defendant No. 3 are the joint family properties liable to partition. Also he alleged that the Plaintiff and Defendant No. 3 have purchased several pieces of land benami in the name of Kalicharan should be made available for partition being joint family properties. The properties claimed by him have been acquired by his own earnings from the business he was having with his father -in -law and other persons.