LRS. OF NAVRATANMAL Vs. LRS. OF BIRDHICHAND

JUDGEMENT

(1.) These appeals are directed against judgment and decree dated 04.11.1993 passed by District Judge, Churu, whereby, consolidated Civil Original Suit No.17/1970 (11/77) filed by Birdhichand and Ors. and Civil Original Suit No.1/1972 (15/77) filed by Navratanmal and Babulal have been partly decreed.

(2.) The facts in brief may be noticed thus: plaintiffs Birdhichand, his wife Smt. Kankanwari and minor son Guruchand filed a suit for possession and permanent injunction against Jeevanmal, Norangmal @ Navratanmal, Babulal & Ratanlal, all sons of Birdhichand, inter alia, with the averments that properties belonging to the family as indicated in para-3 of the plaint were situated in Sardarsahar and one property was situated at Kolkata, whose rent and interest were accruing to Firm M/s. Surajmal Dhanrajmal Nahata; the Firm was ancestral and the goods lying therein, which belong to plaintiff No.1; plaintiff has married his two daughters Ganeshi and Umrao and defendants Jeevanmal and Norangmal @ Navratanmal; his few children are still unmarried; defendant Nos. 1 to 4 despite plaintiff's efforts could not claim any status in the society and did not earn anything and have been harassing the plaintiff No.1, therefore, plaintiff decided to partition the property; plaintiff No.1 is Father and Karta of the family and is competent to partition the property; defendant Nos. 2, 3 and 4 made a written request for partition, whereof he partitioned the property on 04.01.1969 and sent certified copies to all the parties by registered post; defendant No.4 accepted the same while rest of the defendants refused to accept. It was claimed that ancestral property has been partitioned equally among his wife and six children and some property has been kept back for unmarried daughters Sushila and Shayar; defendants being sons of plaintiff, were utilizing the immovable properties but after partition, were told to occupy their shares, however, on account of conspiracy and collusion, they have occupied Haveli No.2 regarding which they have no right; defendants have illegally trespassed on the property and have deprived the plaintiff from recovery of the rent of Kolkata property, which could not be partitioned on account of pending income-tax matter. It was prayed that defendants be restrained by permanent injunction not to trespass on the property other than what was allotted to them by way of partition and remove their possession from other properties and not to interfere in plaintiff's right to recover rent of Kolkata property.

(3.) Written statements were filed by defendant Nos.1 to 3 disputing the averments made in the plaint. It was, inter alia, claimed that the plaintiff has not disclosed the entire ancestral property; in fact the entire property purchased by him was purchased out of ancestral property, details thereof were given in additional pleas; the partition effected by the plaintiff was arbitrary and biased, which is not acceptable to the defendants; the plaintiff has committed partiality against children of his first wife and has wrongly kept back properties from partition and is, therefore, not entitled to any injunction. It was also claimed that property of quite minimum amount has been given to them. During pendency of the above suit (17/1970) filed by the Birdhichand and Ors., Norangmal @ Navratanmal and Babulal filed a suit (1/1972) for partition on 08.11.1972, which was amended and amended plaint was filed on 02.02.1978 impleading Smt. Kankanwari as party; averments were made in the plaint giving out family tree in Annexure - 'X'; the joint business of the family was being conducted at Kolkata and Sardarsahar; the main business being money landing, dealing in movable-immovable properties and Firm M/s. Surajmal Dhanrajmal Nahata; defendat Birdhichand was Karta of the family and the entire documents, records and accounts are in his possession; the properties of the joint family were indicated in Annexure - 'Z'. It was claimed that defendant Birdhichand was aged about 2 years at the time of death of his father Shobhachand and, therefore, Mst. Sadi and Mst. Santoshi were declared his guardians; after attaining majority the said property, which was ancestral and joint was being looked after by plaintiff; the defendant Nos. 3 and 4 started working with and under guardianship of their father. It was claimed that Birdhichand had no personal business or income, in fact the family was being maintained from funds of joint family and income of family Firm M/s Surajmal Dhanrajmal Nahata and Shobhachand Birdhichand Nahata, from which defendant Birdhichand has maintained the family and has purchased the properties.