RAMESHWAR SAO Vs. KAMLA SAO

JUDGEMENT

(1.) This appeal has been filed by the defendant and it arises out of a suit instituted by the plaintiffs for partition. Plaintiff No. 1 and the defendant are brothers, plaintiff No. 2 being the son of plaintiff No. 1 The plaintiffs claimed half share in the immovable properties mentioned in Schedule 1 of the plaint and the same share in the movable properties mentioned in Schedule 2. The suit was decreed in full by the trial Court. But on appeal by the defendant, the trial Court's decree has been modified and the plaintiff's suit has succeeded only with respect to the immoveable properties mentioned in Schedule 1 of the plaint. The Court of appeal below has held that existence of the movable properties mentioned in Schedule 2 has not been proved and the suit has failed with respect to that.

(2.) The relevant facts are as follows: According to the plaintiff's case, Bishun Sao, father of plaintiff No. 1 and the defendant, had died in a state of jointness with his sons and the sons had come in possession of the joint family properties. There was an ancestral house which the plaintiff No. 1 and the defendant sold away. It is alleged that the plaintiffs and the defendant purchased the lands and the house under partition. in the name of the defendant, who was the Karta of the joint family. Thereafter, it is alleged that the plaintiffs and the defendant were in possession of all ioint family properties including immovable and movable properties. According to the plaintiffs, the defendant, under the influence of his wife, was acting against the interest of the plaintiffs and, therefore, the suit for partition had to be instituted. The defendant's case in his pleading is to the effect that the family had only some share in the ancestral house on survey plot No. 139 and that had been sold away by the defendant and plaintiff No. 1 to their co-sharers in 1939. It is alleged that the defendant had gone away to Coochbehar and other places and having earned for sometime there, he returned home and did his own business. It is alleged that the plaintiffs had no concern with the defendant's business and the defendant had purchased the properties mentioned in Schedule 1 of the plaint with his own earnings. In substance, the defendant's case is that the immovable properties sought to be partitioned were exclusive properties of the defendant and are not joint family properties. The existence of the alleged joint family movable properties was denied. It was also denied that the defendant was the Karta of the family, as alleged by the plaintiffs.

(3.) The learned Munsif, who tried the suit, held that the immovable properties were joint family properties of the parties and they were not self-acquired properties of the defendant. The question of partition of movable properties does not arise at present in this appeal filed by the defendant. The learned Subordinate Judge has also concurred with the trial Court in holding that the immovable properties in this litigation were joint properties of the plaintiffs and the defendant.