SATYA NARAYAN BURNWAL Vs. BADRI MODI ALIAS BARNWAL

JUDGEMENT

(1.) THE plaintiff has filed this first appeal against that part of the judgment and decree dated 23.2.1998 passed by Sri Kedar Nath Ambastha, the learned Sub Judge 1st Banka in Title (Partition) Suit No. 28 of 1995 dismissing the partition suit in part.

(2.) THE plaintiff filed the aforesaid suit claiming 1/5th share in the suit property except the property which stands in the name of Kaushalya Devi in which the plaintiff -appellant claimed 1/5tth share.

(3.) ACCORDING to the plaintiff's case Manbharan Modi was a common ancestor. He had two sons namely Ishwar Modi and Badri Modi. There had been partition between the two brothers on 13.8.1962 by a registered deed of partition. Therefore, the parities are not concerned with the property of Ishwar Modi. Badri Modi had two wives namely Kaushalya Devi, the first wife and Subhadra Devi, the second wife. Kaushalya Devi died in 1961 leaving behind his two sons and a daughter namely Laxmi Narain, defendant No.4, Sayta Narain, plaintiff -appellant and Manju Devi, the defendant No.15. Badri Modi was defendant No.1 and second wife Subhadra Devi is the defendant No.2 and her son Purshottam is the defendant No.3. The parties are joint and immovable properties are joint family properties. The defendant No.1 is the Karta and the manager and in that capacity he is managing all the properties and their affairs including the shop business on behalf of the members of joint family. The immovable properties detailed in Schedule A at the foot of the plaint were acquired by purchase out of the joint family fund and common nucleus and contribution of all the male members of the joint family in the name of different members of joint family. Some of the suit properties are the ancestral properties. Schedule B properties is also joint family properties. There had been no partition between the parties and, therefore, there is unity of title and possession. Some of the properties have been sold by the defendant - 1st party in favour of defendant - 2nd party. Defendant No.1 is mismanaging the entire suit property therefore, the plaintiff demanded 1/5th share in Schedule A and B properties and 1/3rd share in the property of Kaushalya Devi, the first wife of Badri Modi. The defendants appeared and filed four sets of written statement.