UMESH BHAGAT Vs. RAM KUMARI DEVI

JUDGEMENT

(1.) This appeal by defendant No. 4 arises out of a suit for partition of properties belonging to a Hindu joint family of which the common ancestor was Jagarnath Prasad Bhagat. He had two sons, Sarda Prasad Bhagat and Jaikishun Prasad Bhagat. The latter was impleaded as defendant No. 3 and his sons were defendants No. 4 to 9. Sarda Prasad Bhagat had two wives, Mt. Laxmi Devi and Mt. Muni Devi. They were defendants T and 2. Plaintiffs Ramkumari Devi and Kamla Devi are the daughters of Sarada Prasad Bhagat by his first wife Mt. Laxmi Devi. The common ancestor died on the 28th June, 1934, and Sarda Prasad Bhagat, who was a medical practitioner, died on the 19th December, 1957. The properties described in Schedule 3 of the plaint were left by tbe common ancestor Jagarnath Prasad Bhagat and the properties in Schedules 1 and 2 were said to be the self acquisitions of Dr. Sarda Prasad Bhagat. Plaintiffs claimed one-third share in Schedule 3 and two-third share in Schedules 1 and 2 properties. The moveables were mentioned in Schedule 2 of the plaint.

(2.) The plaintiffs' case in brief was that their father. Dr. Sarda Prasad Bhagat, had a lucrative medical practice at Darbhanga and owned a pharmacy known as National Medical Hall, of which he was the sole proprietor. Out of his own earnings, he acquired for himself enormous properties which were described in Schedules 1 and 2 of the plaint. The plaintiffs were entitled to two-third share in those properties, the remaining one-third belonging to their mother and step-mother who were defendants first party. Dr. Sarda Prasad was separate from his brother Jaikishun Prasad, defendant No. 3, but both the brothers maintained good relationship in spite of that and Sarda Prasad used to depend upon his brother for many things including the acquisition of his own property. The ancestral properties mentioned in Schedule 3 were, however, not partitioned by metes and bounds and in that the plaintiffs' father was entitled to half and the branch of his brother, defendant No. 3, the other half. The plaintiffs are entitled to two-thirds of their father's share which comes to one-third of the whole properties in Schedule 3. It was alleged that defendant No. 3 cherished dishonest intention with regard to the properties acquired by his brother Or. Sarda Prasad and secretly manipulated some documents without the knowledge of the plaintiff's father with a view to depriving the plaintiffs of their legitimate share. The plaintiffs' stepmother, who is defendant No. 2, happens to be the full sister of the first wife of defendant No. 3, and, as such, she is in his clutches. Plaintiffs' mother being an illiterate pardanashin lady is unable to protect the interest of herself and her daughters. On these allegations the plaintiffs claimed partition of their share. A genealogy was given in the plaint which was not in dispute.

(3.) The defendant No. 1 filed a written statement which supported the plaintiffs' case, while that of defendant No. 2 (plaintiffs' step-mother) went in aid of the contesting defendants. A formal written statement was filed on behalf of the minor defendants, but the main contest was by defendants 3 and 4 who filed two separate written statements but to the same effect. Their main plea was that defendant No. 4 was adopted by Dr. Sarda Prasad Bhagat in Magh 1352 in the Kritrim form as his son, with his consent. It was further claimed in the written statement of defendant No. 3 that another of his sons, defendant 7, was also adopted as a Karta Putra by defendant No. 2, Mt. Muni Devi. The properties in Schedules 1, 2 and 3 of the plaint were claimed to belong to the joint family and all the income of Dr. Sarda Prasad was said to have been thrown in the joint family fund. A family business of glass wares run in the name of Messrs. Shila Stores at Darbhanga and a house in mahalla Ram in the same town purchased from Mahadeb Bhagat were said to be joint family properties, which should have been included in the plaint. The defence of both the defendants 3 and 4 amounted to saying that they had no objection to partition provided it was done on the basis that defendant No. 4 was the adopted son of Dr. Sarda Prasad and defendant No. 6 was the adopted son of defendant No. 2, and that all the properties given in the plaint as well as two other items pointed out in the written statement were treated as joint family properties. The parties went to trial with their respective cases as stated above.