SURENDRA PRASAD MAHTO Vs. ANANDI DEVI

JUDGEMENT

(1.) The Plaintiff-Respondent, Shivlal Mahto since deceased filed Title Suit (Partition) No. 44 of 1995 / 8 of 1997 for the partition of the suit properties detailed in Schedule 'A' and 'B' of the plaint claiming to the extent of 1/4th share.

(2.) The Plaintiff's case in short is that late Laxmi Narayan Mahto father of the Plaintiff were 4 brothers. All of them have died. They were separate in mess and cultivation. Laxmi Narayan Mahto died in 1949 leaving behind 4 sons namely, the Plaintiff and Defendants who came in joint possession of ancestral lands. Awadh Bihari Mahto, Defendant No. 1, was karta of the family consisting of the 4 brothers. Out of the income of ancestral properties, the Defendant acquired properties mentioned in Schedule 'A' and 'B' of the plaint either in the joint name of the 4 brothers or in his own name alone. He continued as karta till 1964. He had no separate source of income. The properties acquired in his own name are also the joint family properties and are in possession of the parties. In 1965, some dispute arose and then all the 4 brothers separated in mess and worship and started separate cultivation according to convenience but there was no partition by metes and bounds. One Bishwanath Singh son of late Ruch Narayan Mahto filed partition suit No. 1 of 1994 against all the co-sharers including the Plaintiff and Defendants but after some time, the said suit was withdrawn. The ancestral properties which were allotted to Laxmi Narayan Mahto came in possession of the parties since 1953 which has been detailed in Schedule 'B'. The Defendant No. 1 sold some joint family property, therefore, the same may be deemed allotted in the share of Defendant No. 1. The Plaintiff demanded partition from the Defendant No. 1 who refuse to partition. Therefore, the Plaintiff filed the suit for partition.

(3.) The Defendant No. 1, Awadh Bihari Mahto filed a contesting written statement. Besides taking various legal and ornamental please mainly contended that the Defendant No. 2 & 3 are in collusion with the Plaintiff and that there is no joint family consisting the Plaintiff and the Defendants. All the 4 brothers are separate in mess and cultivation having no concern with each other. The suit is bad for non-joinder of necessary party. According to him, there had already been complete partition between the 4 brothers of their father. Kamla Prasad filed title money suit No. 7 of 1940 and delivery of possession of all the properties of late Laxmi Narayan Mahto was taken by him in 1945. The appeal filed by Santlal Mahto and others being No. 47 of 1942 was dismissed. Thereafter Second Appeal No. 81 of 1950 was filed before Supreme Court which was allowed and thereafter the possession of the property was re-delivered in the year 1953 and the present Plaintiff and his brothers came in possession jointly. Further, late Laxmi Narayan Mahto died in 1943 and not in 1949. Triveni Mahto was born within six months of the death of Laxmi Narayan Mahto. The Defendant No. 1 became the karta of the joint family property only for two years. Prior to 1953 after death of late Laxmi Narayan Mahto, the Defendant No. 1 was maintaining the family out of his personal income, i.e., he was working as Amin and also cultivating the lands on batai so he could not acquire any property during this period. When the ancestral property reverted back to the possession of the Plaintiff and Defendants in 1953, the Plaintiff Shivlal Mahto started working as school teacher and he was not parting with his income for the joint family and demanded partition of the ancestral land taking the youngest brother, Triveni Mahto in his side. Thereafter in 1957, 4 brothers amicably partitioned the ancestral property equally. Their mother died in 1956. Since after partition in the year 1957, they are coming separately in possession of their share and acquired the properties separately and they also acquired some property jointly giving contribution. The said properties, which were acquired jointly in the name of 4 brothers on contribution after partition, have also been partitioned after purchase. The other allegations about kartaship till 1964 were denied by this Defendant. The further case of the Defendant No. 1 is that there had already been partition between the 4 brothers of Laxmi Narayan Mahto in the year 1938. In the year 1957, the Plaintiff and the Defendants have divided the properties of Laxmi Narayan Mahto by metes and bounds. Thereafter, they acquired the properties in their name out of their own income. The Defendant No. 1 is a qualified Amin working as such since 1937. He had good earning and out of the said earning, he maintained the entire family from 1943 to 1953. He acquired the properties in his own name out of his person income from Amanat. In the written statement, this Defendant has given schedule 'A', 'B' and 'C' lands which was allotted to the Plaintiff, Shivlal Mahto, Triveni Mahto and Thakur Mahto in partition in the year 1957.