KAILASH CHANDRA MANDAL Vs. DEVENDRANATH MANDAL

JUDGEMENT

(1.) This second appeal by the plaintiffs arises out of a suit for partition.

(2.) One Makhanlal Mandal had three sons, Kalipada, Dharanidhar (defendant No. 2) and Bholanath. Kalipada died leaving a son Devendra Nath (defendant No. 1). According to the plaintiff's case, defendants 1 and 2 and Bholanath had one-third share each in the properties in suit and it was, accordingly, recorded in the survey record of rights. The case of the plaintiffs further was that, in the year 1949, defendants 1 and 2 and Bholanath partitioned their properties by a registered deed of partition. The properties in suit, however, were not partitioned by metes and bounds; but, in the said deed of partition, it was merely stated that all the three brothers had equal shares in these properties. Thereafter, Bholanath died in the state of jointness with defendant No. 2, who inherited his share in the properties. On the 3rd August 1960, defendant No. 2 sold by registered deeds his two-third share in the properties to the plaintiffs. As defendant No. 1 did not agree to their request for immediate partition and, thereafter dishonestly misappropriated their share in the standing paddy crops and, subsequently refused to partition the properties by metes and bounds, they were obliged to institute the suit.

(3.) Defendant No. 2, in a written Statement, supported the case of the plaintiffs. Defendant No. 1, however, contested the suit and his case, inter alia, relevant for the purposes of the decision of this appeal was that the properties were not ancestral properties but were purchased by one Chandra Mandalini, who gave the same only to defendant No. 1; but. subsequently, it was agreed upon between the parties that defendant No. 1 would have one-half share in them and defendant No. 2 and Bholanath together would have other half. The entry in the survey record-of-rights was not correctly made. The shares of the parties with regard to the disputed properties were also not correctly shown in the registered deed of partition dated the 26th March 1949 by mistake and, subsequently, Bholanath, by an unregistered deed dated the 4th March 1953, admitted the mistake.