JADU SAHU Vs. CHAMRA SAHU

JUDGEMENT

(1.) This appeal arises out of a suit for partition between two branches of a Mitakshara family represented by two brothers and their respective sons or grandsons. Plaintiff 1 and defendant 1 are the two brothers of whom the latter is the elder. Plaintiffs 2 to 5 are the sons or grandsons of plaintiff 1 and defendants 2 to 6 are the sons of defendant 1. All the defendants filed a joint written statement, and their main defence was that certain joint family properties purchased in the name of plaintiff 1 were not included in the plaint. The nature of the defences will appear from the following issues framed in the suit: 1. Have all the joint properties teen included in the suit ?

(2.) Whether the properties claimed by plaintiffs as their self-acquired properties are really so? and

(3.) To what relief, if any, are the plaintiffs entitled? 2. When the suit came up for trial an application was filed on behalf of the defendants to the effect that if plaintiff 1, Chamra Sahu, took special oath and made statements as to the several items claimed by the defendants mentioned in the schedule attached to and filed with the written statement, they would be bound by his statements, and that those items which Chamra Sahu would thus admit together with the properties admitted in the plaint might be partitioned. This application was signed by defendants 1, 2, 4 and 5 and also by the pleader who had appeared for all the defendants. Plaintiff 1 did take special oath and the suit was disposed of on his statements and a preliminary decree was passed. Against that decree defendants 3 and 6 have preferred this appeal. 3. The first point urged by Mr. Rai Gurusaran Prasad on behalf of the appellants is that they did not join in the petition for special oath and are not therefore bound by the statements made by plaintiff 1 on special oath. He laid stress upon the fact that the application for special oath was signed by the other 4 defendants and not by the appellants. But the pleader who, it appears from the vakalatnama, appeared on behalf of all the defendants did sign the petition.