RAM EKBAL Vs. KHIRA DEVI

JUDGEMENT

(1.) THE following genealogical table will show the relationship between the parties:-- HARIKARAN RAI __________________________|______________________________________ | | | | | Shiwan Rai Jadr Rai Ragho Rai Gisha Rai Bhawan Rai | =Most. (deft. 1) (deft. 2) | Jashoda Devi | (deft. 13) | |_________________________ | | | | Birija Rai Shankar Rai | (deft. 9) (deft. 10) | | | Ramgilash Rai | (deft. 11) | | | Kameshwar Singh | (deft. 12) |___________________________________ | | | Ramekhal Rai Nathuni Rai Ramayan Rai (deft. 3) (deft. 4) (deft. 5) ______________|________ | | | Child name not Jaimangal Rai Mundrika Rai known (deft. 8) (deft. 7) (deft. 6) THE defendants first party only contended that the genealogical table as given is incomplete inasmuch as Mosamat Anho Kuar alias Ramdasi Kuar widow of Bhawan Rai is not shown and also that Ramayan Rai is not shown as the adopted son of Bhawan Rai, but he has been shown in the branch of Shiwan Rai. In view of the subsequent conduct of the defendants first party by giving up the consideration of the fact that Ramayan Rai (defendant No. 5) was adopted by Bhawan Rai, the above genealogical table may be taken to be the admitted genealogical table of the parties. It will show that defendants Nos. 9 to 13 belong to the branch of Jadu Rai who are defendants second party in the suit, and defendants 1 and 2 are the brothers of Jadu Rai and defendants 3 to 8 are the descendant of Shiwan Rai, the fourth brother of Jadu Rai- THEre is no dispute now that so far the line of Bhawan Rai is concerned, it became extinct and the joint family properties devolved on the four sons of Hari Karan Rai. THEre is also no dispute that if there would have been a partition, defendants second party would be entitled to the remaining 3/4th share in the properties.

(2.) ACCORDING to the case of the plaintiff, there was severance of status in the joint family of the defendants about 20 to 25 years ago, and according to the case of the defendants second party severance took place about 15 to 16 years ago, but the parties were cultivating the lands separately according to their convenience i. e. the defendants second party were cultivating about 1/4th land of the family and defendants first party to the extent of the 3/4th share. Since there was no partition by metes and bounds, there was an amicable partition of the joint family properties by a deed of partition dated the 28th February 1955 (Ext. A-1). In the deed of partition two Schedules of the properties were prepared, namely 'Ka' and 'Kha'. Schedule 'Ka' properties were given to the defendants second party, in their entire 1/4th share and Schedule 'Kha' properties in respect of 12 annas share were given to the defendants first party. The plaintiff alleges that she purchased the entire 1/4th share properties of the defendants second party by virtue of a registered sale-deed dated the 9th July 1962 (Ext. 3) and thereafter she came in cultivating possession of the properties mentioned in Schedule 2 of the plaint, but subsequently there was apprehension of a breach of the peace resulting in a proceeding under Section 144 of the Code of Criminal Procedure, which was decided against the plaintiff and as a result of which the defendants first party dispossessed the plaintiff from the suit land on the 31st of August, 1962, and hence she filed the suit under appeal on the 22nd September, 1962, primarily for declaration of title and recovery of possession in respect of Schedule 2 properties. In the alternative she praved that if the partition between the defendants first and second parties was not established then a separate takhta of 1/4th share of the defendants second party be carved out and thereafter possession through Court over the said 1/4th share may be given to her.

(3.) THE real contest was made by defendants first party. THEir claim was that the partition deed dated the 28th February 1955 was only a paper transaction and it was invalid because defendants 3 and 5 did not join the document. THEy alleged that the parties were still joint in mess and properties. THEre was no severance in the joint family status and as such the defendants second party had no right to sell away l/4th share to the plaintiff. It was also contended that as the plaintiff was a purchaser of a specific property, she had no right to bring a suit for partition. It was also stated that the joint family was very much involved in debt and there could not be partition unless the defendants second party were also burdened \vith the proportionate share in the joint family debt. On the aforesaid grounds, they contested the suit of the plaintiff.