RAM NARAIN Vs. RAM DAS

JUDGEMENT

(1.) This is an appeal by two of the defendants, Ram Narain and his son Lachhmi Narain from a final decree dated 16 August 1924, in a suit for partition of the joint family property. The property consisted of moveables, house property and zemindari shares. The three plaintiffs are the two sons and one grandson of Rameshwar Sahu and the principal defendants were Ram Narain, defendant 1, who is the appellant before us, and, Deo Narain, an insane brother of Ram Narain. The share of the plaintiffs in the joint family property was one-half and the share of the defendants 1, 2 and 3 was the remaining half. The suit was resisted upon various grounds but ultimately a preliminary decree for partition was passed by the learned Subordinate Judge of Benares on 23 April 1924. The operative part of the decree, material for the purpose of the present appeal may be reproduced here: It is ordered and decreed that the account of the defendants is correct, that the plaintiffs objection be disallowed, that the amin do partition the immovable property specified in the plaint, that the amin do partition the property into two parts and make a report by 14 May 1924, as to which portion can be given to the plaintiffs and that the amin do partition the property in such a way as there may be no difference in the actual price of any property.

(2.) The defendant Deo Narain is a lunatic and was represented in the action through his wife Mt. Makhna. The plaintiffs originally appointed Ram Narain as guardian ad litem of the lunatic; but Ram Narain refused to act, and, therefore, on the application of the plaintiffs, the Court appointed Mt. Makhna as the guardian ad litem.

(3.) It is significant that in the two written statements filed by Deo Narain and Ram Narain neither of them wanted to have his share in the joint family property ascertained and partitioned. The result of it was that a preliminary decree was passed in favour of the plaintiffs alone for a partition of their moiety share in the joint family property.