BALMUKUND KESURDAS Vs. BHAGVANDAS KESURDAS

JUDGEMENT

(1.) One Kesurdas Bhaktidas died in 1896, leaving three sons Bhagvandas, Tribhovandas and Balmukunddas. Tribhovandas died unmarried on 8th May 1900. On 19th April 1905 plaintiff Balmukunddas filed this suit to recover possession of certain property from his brother Bhagvandas. He alleged that Bhagvandas had separated from the family during his father s life-time in or about the year 1886, that after his separation the father Kesurdas lived in union with his two sons the plaintiff and Tribhovandas, and that after their father s death they continued to live in union as members of a joint family till the latter s death in 1900, that thereupon the plaintiff alone became entitled by survivorship to the property which was under Tribhovandas s management, and that after Tribhovandas s death the defendant wrongfully and fraudulently took possession of the same. Hence this suit.

(2.) Defendant Bhagvandas contended that he had never separated from his family, that he was joint with his two brothers, and that on Tribhovandas s death he and the plaintiff were entitled in equal shares to the property in dispute. He further pleaded in the alternative that if the property be held to be the separate and self-acquired property of Tribhovandas, he alone was entitled to the whole of the property under Tribhovandas s will.

(3.) On 10th February 1909 after Bhagvandas had been partially examined, the plaintiff applied for leave to amend the plaint by adding a prayer to the effect that in case the Court came to the conclusion that the plaintiff and defendant were equally entitled to the property in dispute, then the whole of the family property in the possession of each of the parties (including the property in dispute) should be ascertained and divided between them in equal shares. This application for amendment was granted on 4th March 1909 on condition of plaintiffs giving full particulars of the property to be brought into hot and paying additional Court-fees on the value of the said property.