AJODHYA PERSHAD Vs. MAHADEO PERSHAD

JUDGEMENT

(1.) This appeal arises out of a suit for partition of the property of a Hindu joint family, the parties being the descendants of one Gopal Lal, a banker of Mozafferpur.

(2.) The plaintiff, who is a son of Gopal Lal, alleges that in the year 1896 there was litigation between him and his father and other members of the family, regarding certain of the family properties, that while that litigation was pending, there was a partition of some of the family properties, and that he and the defendant remained in separate possession of the properties so divided, and he now seeks for a partition of the remaining movable and immovable properties of the family, including the profits derived from the lands and business transactions of the family after an account of the same has been taken. The defendant raised a number of objections in the lower Court, which will be dealt with as far as is necessary for the purpose of this appeal. Subsequently on the 2 February, 1905, a preliminary decree for partition was granted to the plaintiff. The Court did not, however, decree the plaintiff's suit in regard to. many of the properties claimed. A Commissioner was then appointed to divide certain movables and immovables and to take an account of the profits of the joint family property from the year 1895. The Commissioner submitted a report regarding the movable property on the 28 September 1905, and a further one regarding the immovables and the accounts on the 4 May 1906. On an examination of the accounts, he found that the defendant was liable to pay Rs. 8,683-11-2 to the plaintiff. On the 28 August 1906, a new Sub-Judge, after a consideration of all the objections raised to the report of the Commissioner, confirmed it in regard to the actual partition, but found that on account of the profits Rs. 4,342-10-4 1/2 only were due to the plaintiff. The Sub-Judge directed, therefore, that this amount should be decreed on payment of the necessary Court fees. The Judge, though he apparently thought that the preliminary decree in regard to the accounts was incorrect, was of opinion that it was incumbent upon him to accept the decision of his predecessor on this point. Against that decision this appeal is filed by the defendants who now really attack not only the final decree but also the preliminary one. There are fourteen grounds of appeal mentioned in the memorandum but of these three only have been pressed at all before us, and they are. the following: (1) That property No. 10 of Schedule 3 should not have been divided but should have been left in the possession of the defendants who were willing to pay compensation to the plaintiff on this account. (2) That the defendant No. 1 is not liable to render any accounts to the plaintiff and that the suit as framed is not maintainable. (3) That if he is so liable, the suit in regard to many of the amounts claimed is time-barred, as it was brought more than three years after the cause of action arose.

(3.) There does not seem to be any reason to interfere with the decision of the learned Sub- Judge in regard to property No. 10 of Schedule 3. It appears that at one time the plaintiffs offered to surrender their claim to this property if the ancestral house were given to them solely. This offer was then refused by the appellant and he has, therefore, no cause for legitimate complaint if he cannot secure the whole of the property No. 10. We find that when it was offered to him he refused it. We are also informed that the value of this property has increased lately from various causes, and that the plaintiff does not wish, therefore, to part with his interest in it. It has already been divided, and the Commissioner and the lower Court are both of opinion that the partition is an equitable one, and that the value of the property is not injured thereby, and that the property can be and in fact has been easily and conveniently divided into two portions. We must, therefore, decline to interfere with the order of the lower Court in this matter.