MOHANLAL Vs. HABIBULLAH

JUDGEMENT

(1.) This appeal by defendant No. 1 arises out of a suit for .partition which, was decreed by an Additional Subordinate Judge of Patna. The properties sought to be partitioned are two holdings situated within Patna Municipal Corporation, namely, old holding No. 101 corresponding to new holding No. 103 consisting of two blocks described, as northern kita and southern kita, and old holding No. 96 corresponding to new holding No. 98.

(2.) In order to appreciate the case, it is necessary to refer to the admitted genealogical table given below :- <FRM>JUDGEMENT_430_AIR(PAT)_1963Html1.htm</FRM> Defendants 1 to 14 are the only persons alive in this family at the time of the institution of the suit. It will be noticed that the common ancestor, Narain Sao, had three sons, namely, Kallar Sao, Mahadeo Sao and Makhan Sao. Defendant No. 12 is the son of Sundar Kuer, the daughter of Mahadeo Sao. This defendant had a full brother named Gopi Nath who died leaving a son who is defendant No. 13 and a widow who is defendant No. 14. Makhan Sao who died before 1902 had seven sons. The eldest son Saukhi had two wives; defendant Nos. 2 and 3 arc the sons through the second wife and defendants Nos. 4 and 5 are, respectively, the wives of these sons. Radhe Sao, the son of Saukhi Sao through his first wife, died sometime before 1902 leaving behind his widow Mosst. Sampat who died in or about 1940. Paduji, the second son of Makhan Sao, died sometime before 1932 leaving behind his widow Deorani Kuer and five daughters. Deorani died in 1934-35 leaving behind the five daughters of whom Jamuna defendant No. 10 and Janki defendant No. 11 were alive at the time of the institution of the suit. Defendant No. 9 is the son of Ram Kuer, another daughter of Paduji; and defendant No. 8 is the son of another Sampatia, the youngest daughter of Paduji. This daughter had another son named Rajendra Sao who died long ago. None in the branch of Besar Kuer, the second daughter of Paduji was alive at the time of the institution of the suit. Mohan Lal (defendant No. 1) is the son of Saduji the third son of Makhan Sao. His fourth son, namely, Gulabji, had a son named Prabhuji. Saudagarji, the fifth son of Makhan, died leaving a widow named Bifo who died in 1938. Miranji, the sixth son of Makhan Sao, died in 1902 leaving widow Mosst. Kuer who died in 1914. Parmeshwar Sao, the youngest son of Makhan Sao, died in June, 1929, leaving two sons Chhathu and Raghunath (defendant No. 6). Chhathu died in 1939-40 leaving a widow named Mosst. Resam Kuer (defendant No. 7). Kallar Sao, the eldest son of Narain Sao, died on the 24th September, 1902, without leaving any issue or widow and he was the exclusive owner of the suit properties, having separated from Mahadeo Sao and the other defendants of Makhan Sao long before. Kallar executed a registered will on the 21st July, 1902 in respect of the suit properties and other properties. Saduji and Parmeshwarji were the executors of the will, and they took out probate from the Court on the 13th June, 1903 in respect of this will.

(3.) The plaintiff was the tenant for some time past of the southern kita of holding No. 101and also about one half of holding No. 96. He purchased the shares of Mosst. Jamuna and Mosst. Besar, two daughters of Paduji in the two kitas of holding No. 101 under a registered sale deed dated the 18th September, 1941 and the share of the other, two daughters, namely. Ram Kuer and Mosst. Sampatia in these kitas from their heirs under a registered sale deed dated the 26th September, 1941. He also purchased the share of the heirs of Mahadeo Sao in both the kitas under another registered sale deed dated 7th January, 1950, and the entire share of Raghunath, son of Parmeshwarji, and Resam Kuer, widow of Chhathu, in the two kitas under a registered sale deed dated 13th October, 1940. Mosst. Sampat alias Sampatia sold the share of Parbhuji, claiming to have been married to him in sagai form, to Mosst. Deoki Kuer, wife of Ganesh Lal under a registered deed dated 15th June, 1938. This Deoki sold 3 piece purchased share in the southern kita to the plaintiff under a registered sale deed dated the 14th April, 1942. All these transfers relate to holding No. 101. He also purchased 3 annas share in holding No. 96 from the heirs of Mahadeo Sao tinder a registered sale deed dated the 7th January, 1950. On the basis of these sale deeds, the plaintiff claims a share of 7 annas 2 2/5 plea in the northern kita and 7 annas 11 2/5 pies in the southern kita of holding No. 101. He accordingly sought for partition of these shares in the suit properties.