MANGNU MISHRA Vs. GAURI MISHRA

JUDGEMENT

(1.) This is an application against an order refusing leave to amend the written statement filed by the petitioners in a suit for partition.

(2.) The claim of the plaintiffs was for a 3/5th share in the properties in suit on the following allegations. That there was one Kashi Mishra who had four sons--Goyind Mishra, Bhailal Mishra, Rajendra Mishra and Mohan Lal Mishra. Govind's grandson is one Kunj Behari, defendant No. 1. His wife filed a suit as plaintiff No. 1 and her two sons are plaintiffs 2 and 3. Defendant No. 2 is another son of Kunj Behari. Defendant No. 3 is the widow of a son of Govind. The petitioners are the defendants of Rajaram, the third son of Kashi Mishra. The fourth son Mohan Lai had a son Janardan Mishra whose widow was Kunti Mishrain. The plaintiffs allege that after the death of Kunti Mishrain, the properties of Janardan Mishra, who died issueless, devolved on defendant No. 1 who was the sole surviving heir. It is said that in the branch of Rajaram Mishra the father and uncles of the petitioners had predeceased Kunti Mishrain and, therefore, they were merely impleaded as defendants third party In order to aviod future objection. In other words, it Is said that they did not inherit the property of Janardan Mishra. This was stated in paragraph 3 of the plaint. It was further stated that defendant No. 2, the son, was, not pulling on well with his father, defendant No. 1 and that defendant No. 1 has been neglecting the affairs of the family and defendant No. 2 was also living in bad company and had bad habits and the joint family property was being wasted. Further that defendant No. 2 had executed bogus and fictitious kebalas in favour of defendants second party (other than the petitioners). Hence the suit to safeguard the interest of the plaintiffs.

(3.) It appears by a written statement that these petitioners said (in paragraph 4)" that these defendants and the defendant second party are unnecessary party to the suit inasmuch as no land is joint between the plaintiffs and defendant first party on the one side and these defendants on the other and the plaintiffs have wrongly included in the partition claimed properties such lands which are already partitioned from before, "In paragraph 9 of the written statement the petitioners further said that the plaintiffs' statement in paragraph 3 of the plaint that her (plaintiff No. 1 's) properties had devolved upon defendant No. 1 alone, was false. They said "that Kunti Mishrain died in the month of January, 1955 and in April, 1955 the properties left by Mossomat Kunti Mishrain were divided between defendant No. 1 on one side and these defendants on the other side half and half and by metes and bounds at the intervention of the Panches and according to the said partition the defendant No. 1 came in possession of the lands which were allotted in his share and has separately been dealing with them." They also alleged "that a memorandum of the aforesaid partition was written and executed by defendant No. 1 and this defendant No. 6 on 2nd Jeth, 1363 fasli which is equivalent to 26th May, 1956 and two Original documents were prepared both bearing thumb impression of defendant No. 1 and this defendant No. 6 and signature of the five Panches who had taken part in Partition of April, 1955.The aforesaid written statement was filed on the 18th of March, 1968.