JAGANNATH BARDHAN Vs. KAILASH BARDHAN

JUDGEMENT

(1.) Being aggrieved by judgment in First Appeal No. 187 of 1982 passed by the learned Single Judge reversing the judgment and decree of the learned trial Judge at the instance of Defendant Nos. 2 to 4, the plaintiff No. 2 had preferred this appeal under Clause 10 of the Letters Patent questioning the propriety of the aforesaid judgment, and presently the appeal is being continued after his death by his legal representatives.

(2.) One Padan had filed T.S. No. 148/72 claiming l/5th share in the Schedule 'A' Properties and the entire properties described in Schedule 'B' on a declaration that the deed of partition dated 21.4.1964 was void, inoperative and not binding. He had also prayed for an injunction against the defendants therein from raising any construction on the 'B' Schedule properties. As averred in the plaint he has four sons : Jagannath, Baidyanath, Kailash and Jaikrushna. The properties described in 'A' Schedule were the ancestral properties which Padan himself had obtained in a suit for partition in T.S. No. 5/52. Schedule 'B' properties were self-acquired properties of Padan as he had purchased the same out of his own personal income. As the plaint allegations proceed, while the earlier partition suit was in progress Kailash and Jaikrushna were looking after the litigation on behalf of Padan and in course of that litigation they had come to know the Lawyer and the Advocate's clerk. As differences and disputes arose between .Padan and his sons and Padan being old was not looked after by them a suggestion came from Kailash and Jaikrushna that each of the sons would pay Rs. 15/- per month to him towards his maintenance and Rebati, the wife of Kailash, would look after Padan. This arrangement was decided to be reduced to writing and accordingly a document was executed and registered on 21.4.1964 between Padan and his sons as well as Rebati. Padan was under the impression that the deed in question was a deed for his own maintenance as the parties to the documents had paid maintenance as agreed to for some time. However, with the passage of time the sons stopped paying maintenance for which he was compelled to serve a notice on his two sons, namely, Jagannath and Kailash. Kailash replied by denying his liability. On making queries Padan learnt that in a clandestine .manner the deed of partition had been executed and registered in respect of the properties described in Schedules 'A' and 'B' of the plaint, though there was no discussion or arrangement for effecting a partition of this nature. The original plaintiff Padan alleged that he was not bound by the fraudulent and illegal deed of partition purported to have been executed by him on 21.4.1964 as the same has come into existence by perpetration of fraud. On this background, he sought the reliefs as indicated earlier. Jagannath who was originally defendant No. 1 in the suit got himself transposed as plaintiff No. 2 and supported the case of Padan his father. Baidyanath did not contest the suit and chose to remain ex parte. Kailash and Rebati filed a written statement denying the plaint allegations. Jaikrushna filed a separate written statement controverting the allegations made in the plaint. The stand of the defendants in their respective written statements is that four sons of Padan had constituted a joint Hindu family and Baidyanath was staying -at Calcutta and was not coming, to Cuttack. After the death of Padan's wife dissension arose between the brothers and they claimed for partition. As Baidyanath had settled in Calcutta he expressed his desire not to take any share and accordingly relinquished his interest. As it was decided that Rebati would take care of her father in law and render service, Jayakrushna and Rebati would get half share in the properties described in Schedule 'B' of the plaint and in return they agreed to pay Rs. 500/- and Rs. 400/- respectively to Padan. Jagannath, Kailash and Jaikrushna agreed to pay Rs. 15/- per month to Pradan towards his maintenance. With these agreed terms and conditions they approached their counsel Sri Haricharan Mukherjee and with his advice a family settlement was drawn up. After formalities being complied with it was executed and registered on 22.4.1964. As stated in the written statement a deposit of Rs. 900/- was kept with the Lawyer and a deed of agreement was also executed by Jagannath, Kailash and Jaikrushna who agreed to pay maintenance to their father Padan. As Jagannath had got a vacant land it was agreed that he would get Rs. 150A from Kailash towards construction of his house. It was also pleaded that the properties described in schedule 'B' had been acquired out of the joint family funds or in the alternative the same having been blended with the joint family properties, it had assumed the character of joint family coparcenary properties and the same having been partitioned a suit for fresh partition was not maintainable.

(3.) On the aforesaid pleadings the learned Additional Subordinate Judge framed nine issues and decreed the suit on 19.6.1975 On appeal being preferred forming the subjectmatter of First Appeal No. 109/75, the judgment and decree passed by the original Court were set aside and the matter was remanded by retrial by framing an issue, namely, whether Ext. 2 the deed of partition is binding on Padan and executants thereof. Padan died during pendency of the First Appeal. Baidyanath having no legal heir none was substituted in his place. After remand the parties adduced fresh evidence and ultimately the learned trial Judge decreed the suit by coming to hold that the properties described in Schedule 'B' of the plaint were self-acquired properties of Padan and the plea of earlier partition was a myth and never been acted upon and the registered deed, Ext. 2 was not binding on Padan as he was old and lost his eyesight. On.such conclusion the trial Judge directed that Padan having died and Baidyanath having no interest properties should be partitioned between the three sons, namely, Jagannath, Kailash and Jaikrushna. The aforesaid judgment was called in question in First Appeal No. 187/82. Before the learned Single Judge it was contended that the oral evidence and other materials on record would categorically go to show that by virtue of execution of Ext. 2 there was a prio'r partition and the question of further partition did not arise. It was also contended that there was no reason to declare Ext. 2 as invalid and inoperative in the eye of law. On behalf of the respondent therein it was convassed that Ext. 2 having not been read over and explained to Padan the conclusion arrived at by the original Court was unassailable.