THOILOKHYA NATH DAS Vs. KENARAM DAS

JUDGEMENT

(1.) These two appeals arise cut of a suit for partition. Defendants Nos.1-3 are the appellants in Appeal from original Decree No. 90 of 1930, while defendant No. 4 has preferred Appeal No. 162 of 1930. The relationship between the parties to the suit will appear from the following genealogical tree:

(2.) It will appear from the said tree the Mohan Das was the plaintiff's grand father He had three sons, the eldest Prosad Charan Das, the second Kali Prosad Das and the youngest Biswa Nath who is defendant No. 6. Defendants Nos. 1, 2, 3 and 4 are the sons and heirs of the late Prosad and the plaintiff and defendant No. 5 are the sons and heirs of Kali Prosad. The case stated in the plaint is that Mohan separated in mess and property from his other co-sharers in 1299 A.S., that Mohan died in 1312 A.S. 1905 and after the death of Mohan his sons continued in joint mess and property and that Prosad was the karta of the family; that during the lifetime of Prasad, a settlement of 1000 high as of land known as lot Surendraganj G plot within Sunderbans was obtained out of ijmali funds and that large sums of money were spent for reclaiming the Sunderbans jungle land out of ijmali assets; that the late Mohan Narayan Das left the immovable properties in Scheduled I in Mauza Doulbar formerly under Thana Contai in the Midnapore District; that these properties were acquired in the names of different members of the family from the profits of ancestral properties of the plaintiffs and defendants. It is stated in the plaint that Prosad died in Ashar 1317 B.S. and defendants Nos. 1,2,3 and 4 have succeeded him. In the properties of Schedules I and II (Sundarbans) the defendants Nos. 1 to 4 have got a third share, the defendant No. 6 a third share and the plaintiff has got an one-sixth share and defendant No. 5 has got an one-sixth share. It is further stated that after the death of Prosad, defendant No. 1, became the karta of the family. The plaint next recites that at a time when plaintiff was lying ill with typhoid fever, defendant got a deed of agreement of amicable partition executed by the plaintiff without disclosing to the plaintiff all the facts relating to the properties under the management of defendants Nos. 1 and 2. The defendants Nos. 1 and 2 took advantage of their position by stating falsely and by practising fraud and without giving the plaintiffs time to understand or opportunity to consult, got the deed of agreement registered; that notwithstanding the execution of the deed of agreement, the plaintiff and the defendants were owning and possessing and enjoying the usufructs of the properties of the 1 and 2nd Schedule in claim as before in ijmali, that the deed of reference to arbitration has become legally invalid and unenforceable on account of the death of the arbitrators. It is further stated in the plaint that the deed of agreement to partition contains many false recitals (see Paragraph 11 of the plaint).

(3.) It is further stated that of all the ijmali properties of plaintiff and defendants the lot at Sunderbans are the most valuable and the lands of Deolpata Syamchuk, etc., are first class lands and they, having been assigned to defendants Nos. 1, 2, 3 and 4 the agreement of partition has been extremely unfair and cannot bind plaintiff. The plaint sets forth in the third schedule the movable properties and the plaintiff prays for a division of the movables also. The plaintiff prays for (1) partition by metes and bounds of plaintiffs 1/6 shares in properties in the three schedules to the plaint and for possession (2) for accounts to be rendered by defendants Nos. 1 and 2 since 1317 Sraban B.S. and a decree for costs.