BARHU RAM Vs. BUTAI RAM

JUDGEMENT

(1.) This Letters Patent Appeal has been preferred by the defendants who are aggrieved by the judgment and order of a learned Judge of this Court dated 1-11-1991 in First Appeal No. 257 of 1977 affirming the Judgment and decree dated 12-1-1977 passed by the 2nd Sub-Judge, Patna in Title Suit No. 22 of 1974. The judgment and decree passed by the trial Court decreeing the suit for partition filed by the respondents has, therefore, been affirmed by a learned Judge of this Court and it has been concurrently held that the property in question, namely, the house at Lohanipur, Patna is not a joint family property available for partition between the coparceners.

(2.) The facts of the case are that one Chaitu Ram had seven sons. Two of his sons died issueless during his life time. Etwari, another son died leaving behind a son Kamla Ram, plaintiff No. 2. Chaitu Ram died some time between the years 1972 and 1974 leaving behind four sons, namely, Butai Ram, plaintiff No. 1 and Barhu, Girdhari and Raghuni (defendants 1 to 3) apart from a grand son Kamla Ram, Plaintiff No. 2.

(3.) Title Suit No. 22 of 1974 which was a suit for partition of joint family properties was filed by Butai Ram, the eldest son of Chaitu Ram, and Kamla Ram, son of Etwari Ram, nephew of plaintiff No. 1 against the three brothers of plaintiff No. 1, namely, Barhu Ram, Girdhari Ram and Raghuni Ram. The case of the plaintiffs was that two sons of Chaitu Ram, namely, Laxmi Ram and Gigal Ram had died issueless in a state of jointness. After the death of Chaitu Ram, Barhu Ram became the Karta and Manager of the joint family since he was considered to be wise and clever. Barhu, defendant No. 1, started misappropriating joint family funds and utilising the joint family fund and usufruct for his own use and comfort. In view of the attitude of defendant No. 1, the plaintiffs requested the defendants many times to amicably partition the suit properties, but they did not pay any heed to the request of the plaintiffs, and therefore, it had become necessary to file a suit for partition. The plaintiffs, therefore, prayed for 2/5th share in the joint family properties as described in Schedules II and III of the plaint. Schedule II of the plaint related to ancestral property which included a house and three bighas of land at Manner and also Khata No. 65 plot No. 635 measuring 1.81 acres. Schedule III related to cattle owner by the family valued at Rs. 6,000. (rupees six thousand only).