VIJAI KUMAR Vs. KIRAN DEVI

JUDGEMENT

(1.) THIS Miscellaneous Appeal has been filed by defendant No. 1 of Title Suit no. 88 of 2002 against order dated 23-7-2004 by which learned Subordinate Judge vii, Biharsharif, Nalanda, allowed the petition filed by sole plaintiff (respondent No. 1)under Order XL Rule 1 of the Code of Civil procedure (hereinafter referred to as the 'code' for the sake of brevity) and directed the plaintiff to deposit Receiver's fees of Rs. 500. 00 whereafter Receiver was to be appointed. It is also stated that the plaintiff (respondent No. 1) deposited the said amount on 24-7-2004, whereafter the learned Court below by its order dated 4-8-2004 appointed sri Sanjeev Kumar Chandrayavee, Advocate, as Receiver of the suit properties.

(2.) THE aforesaid suit was filed by the sole plaintiff (respondent No. 1) for partition of 1/5th share claimed by her in the suit property. The claim of the plaintiff is that the suit property belonged to one narain Mistri who died in the year 1989 leaving behind a widow, four daughters and a son, but subsequently the widow of Narain mistri also died in the year 2001 and hence the entire property devolved upon the aforesaid four daughters and a son who are parties to the suit and the instant Appeal. It is also claimed that defendant No. 1 (appellant)was the only brother who was looking after the properties and letting out shops and realising rent on behalf of all the co-sharers, but subsequently he stopped payment of due share to the plaintiff in the income of rent etc. because of which the plaintiff demanded partition, but he refused and hence the plaintiff filed the aforesaid suit.

(3.) ON the other hand, defendant No. 1 (appellant) contested the suit by filing written statement stating that although some properties were purchased by Narain Mistri and his wife Brahma Devi, but the other properties were purchased by defendant no. 1 Vijai Kumar, his wife Laxmi Devi and his son Vishal Kumar out of their own fund. He further claimed that Brahma Devi gifted her self acquired property to Vishal Kumar and Laxmi Devi and subsequently the residential house built by narain Mistri was partitioned between his widow and his son defendant No. 1 (appellant) half and half to which the daughters agreed. Hence, he claimed that the suit was barred by waiver, estoppel and acquiescence and the plaintiff has got no share at all in the suit property.