SHANKER PROSAD JHA Vs. BABU LAL JHA

JUDGEMENT

(1.) This is a partition suit brought by the plaintiffs against their uncles, defendants Nos. 1 and 2, and their descendants, who are defendants Nos. 3-10.

(2.) Joyram Dutt, the grandfather, died in 1295 leaving three; sons Babulal, Surji and Dinabsindhu. These throe brothers remained joint up to about 1302, when they separated in mess, and the income of the family properties which remained joint used to be divided in three equal shares. In this state of things Surji died about 1308 leaving four sons, who are the plaintiff. Of those, plaintiffs Nos. 1 and 2 have attained majority and the other plaintiffs are minors. 80 far the facts may be taken as established. The plaintiffs state that on the death of their father the family properties remained in charge of their uncles, defendants Nos. 1 and 2, who used to pay them small amounts for the bare necessities of life and were, therefore, liable to render accounts for he period subsequent to the death of their father. Marring the question of accountability which he denies, defendant No. 2, more or less supports the case of the plaintiffs. Defendants Nos. 1, 3 and 4 really oppose the suit. They say that property No. 2 being the zemindar interest in 5 annas 4 pies thereof, was acquired by defendant No. 1 with his own money in the name of his father and the nokarari of 10 annas 8 pies in his own name; that he has been recorded in the Settlement Records as the proprietor and mokararidar and the suit is barred by limitation under Regulation ill of 1872 in respect of this property and properties Nos. 5 and 8. They say that defendant No. 1 had no objection to divide property No. 2 at the time of the partition, bid the father of the plaintiff and defendant No., 2 gave up their shares and took the whole of the properly No. 7 instead. They repudiate their accountability and claim contribution to some debts alleged to be due from the family.

(3.) The learned Subordinate bulge has held that the suit for properties Nos. 2, 5, 8 is barred by the provisions of Regulation 111 of 1872; he has decreed partition of the other properties and dismissed the claim for accounts he has also made the plaintiffs liable to pay 1/3rd share in certain debts. It is contended in appeal before us- (1) That the defendants, who plead the Regulation in bar of the suit, have not proved that the notices required by the Regulation were duly served and cannot, therefore, invoke the aid of the Regulation; (2) that the notices required by the Regulation could not, even if served, affect the minors win could not in law be considered as cognizant of any proceedings taken; (3) that the plaintiffs were minors when the Record of Rights was made and the defendant No. 1 who was thou the karta of the family was recorded as such harta, and the Regulation does not bar the present suit; (4) that the orchard in Mouza Rauga which was added at the instance of the defendants as joint property should have been included in the decree; (5) that if the defendants case as to the properties Nos. 2, 5, 8 was allowed, the share of the plaintiffs in property No. 7 should have been 1/2 instead of 1/3rd; (6) that the defendants should have been held to be accountable since the death of the plaintiffs father; (7) that the debts incurred after partition should not have been thrown upon the plaintiffs; (8) that the expenses of the sradh should not have been divided equally in the absence of a contract to bear the same in equal shares.