A. In regard to the movable properties described in Sch.
He directed that an account be taken of the assets and liabilities of the family since the date of demand for partition by the plaintiff Bijendra Narain in 1941.
Bijendra Narain claimed that all properties standing in the name of Bidya Narain and his sons and also of Hashistha Narain dependent No.
1 3 One anna four piece share Plaintiffs Nos.
4 5 One anna four piece share Plaintiffs Nos.
Then followed schedules setting out detailed descriptions of the properties.
The Trial Court had to try the issue of severance of the joint family status by the decree in suit No.
In support of this plea he relied upon specification in the decree of the share of Bijendra Narain.
27 of 1923, that the defendants had been in exclusive possession of the properties purchased in their names since the date of acquisition, and that the plaintiff Bijendra Narain was never in possession of those properties.
Bijendra Narain attained the age of majority in 1934, and on July 10, 1942 companymenced the present action for partition of a half share in the properties which were in the possession of Bidya Narain, his sons and grandsons alleging that he, Bijendra Narain came to learn in 1938 that taking advantage of his minority and inexperience his uncle Bidya Narain and the sons of Bidya Narain had purchased in their own names many properties with the aid of joint family funds and had acquired certain other properties in the name of Bashisht Narain twentyfourth defendant in the suit , who was daughters son of Bidya Narain that in September, 1941 certain respectable residents of the village companysented to lend their good offices to settle the dispute and to act as panchas, that at the meeting before the panchas, Bidya Narain and his sons admitted that the properties held by them including the properties acquired in their names and of Bashisht Narain were joint family estates, but they later demurred to give to the plaintiff a separate share, and hence the suit.
A decree final was made on February 15, 1937 and the properties of the family were divided in three lots the first lot representing an eight anna share of Udit Narain and the sons of Shyam Narain, the second representing a four anna share of the branch of Indra Narain, and the third a four anna share of defendants 4 to 8 of the branch of Chandra Narain.
3 Two annas share Defendants Nos.
27 of 1923 in the companyrt of the Subordinate Judge, Purnea, impleading as defendants the descendants of Indra Narain and Chandra Narain as parties thereto for partition and separate possession of a half share in the properties of the joint family.
His claim was that the properties belonged to the joint family, because they were purchased by Bidya Narain and his sons with the aid of joint family funds in the name of the 24th defendant.
They submitted that by the decree in suit No.
That the parties agree that the family estate is still joint and that the entire family estate except those that have already been partitioned as detailed below in schedule D will be partitioned by metes and bounds according to the shares as defined above That the parties agree that a preliminary decree be passed declaring the shares of the parties as follows Plaint No.
1 Four annas share Plaintiffs Nos.
Sons of Bidya Narain and Bashishta Narain were the principal companytesting defendants.
Bijendra Narain, son of Ishwari Narain who was at the date of the suit a minor was impleaded as the 8th defendant, by his guardian ad litem Bidya Narain his uncle, who was impleaded as the 4th defendant, Mode Narain, Hari Narain and Rajballav Narain, sons of Bidya Narain, were impleaded as defendants 5, 6 7.
Appeal from the judgment and decree dated November 19, 1957 of the Patna High Court in Appeal from Original Decree No.
Such a claim does number fall within the terms of s. 66 1 .
1 to 3s four annas share, and one allotment should be made for defendants 4 to 8s four annas share, i.e. three allotments will be made as aforesaid.
27 of 1923 there was numberseverance of status between the plaintiff Bijendra Narain on the one hand and Bidya Narain and his sons on the other and that the properties in suit had at all material times remained joint and Bijendra Narain was on that account entitled to a decree for partition and separate possession of a half share in the immovable properties in Sch.
Sarjoo Prasad, D. P. Singh, R. K. Garg, S. C. Agarwal and K Ramamurthi, for the appellants.
It was number alleged by Bijendra Narain that any property was purchased by the 24th defendant on his behalf or on behalf of another person through whom he, Bijendra Narain claimed.
By paragraph a of the decree the adoption of Udit Narain as a son by Raghu Nandan was admitted and it was agreed that Udit Narain was entitled in the property in suit to a fourth share as adopted son of Raghu Nandan, and a twelfth share as heir of his natural father Shyam Narain.
But the suit filed by Bijendra Narain is number of that nature.
8 Two annas share That the parties agree that at the time of partition by the arbitrators one allotment should be made for defendants Nos.
27 of 1923 the joint family status between the plaintiff Bijendra Narain and Bidya Narain had companye to an end, that since the decree passed in the earlier suit the parties had been holding the properties as tenants in common and number as joint tenants, that the members of the branch of Bidhya Narain were living and carrying on their business separately, and the share of the plaintiff Bijendra Narain was looked after and managed by his mother and his maternal uncle Rudra Narain, that the private properties, of the plaintiff Bijendra Narain and the defendants had also been ascertained by the companypromise petition in suit No.
29 b obtained by the Darbhanga Raj on September 19, 1934 and May 24, 1940 respectively, were produced, and they did number companytain the recital.
27 of 1923 joint family estate.
B to the plaint, the learned Judge directed that the Commissioner appointed by the Court do ascertain the properties and divide the same in equal shares and do award one half to the plaintiff Bijendra Narain and the other half to the defendants.
Goburdhun, for the respondent.
In appeal, the High Court agreed with the view of the Trial Court on all the questions in dispute, and companyfirmed the decree, subject to a modification about the direction for determination of movable properties described in Sch.
6, 7 8 One anna four piece share Defendants I 2 Two annas share Defendant No.
The learned Judge negatived the companytention of the 24th defendant that the properties in his possession did number belong to the joint family.
It was urged that this recital also evidenced severance between Bijendra Narain and Bidya Narain of the joint family status by the preliminary decree.
Talebar had two sons Hanuman and Raghu Nandan.
By the institution of the suit there was undoubtedly severance of status between the plaintiffs of that suit on the one hand and the defendants on the other, but companynsel for the appellants companytended that by the specification of shares in the preliminary decree, there was severance of status number only between the descendants of Indra Narain and the descendants of Chandra Narain but also between Bijendra Narain plaintiff in this suit and Bidya Narain.
24 were joint family properties, and that properties were acquired in the name of the 24th defendant by Bidya Narain and his sons with a view to defeat his claim.
The decree further provided.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The case fell squarely within the terms of sub s. 2 of s. 66.
258 of 1848.
in the suit Ext.
The defendants in the suit have appealed to this Court.
29 obtained by Narendra Narayan Chaoudhary defendant No.
29 29 b the certified companyies of the same decree Ext.
Hanuman died leaving him surviving numberlineal descendant and Raghu Nandan adopted Udit Narain grandson of his uncle Shyam Narain.
The Judgment of the Court was delivered by Shah J. This appeal with certificate under Art.
A preliminary decree was passed in the suit on July, 1924 by companysent of parties.
The judg ment of this companyrt Addanki Venkatasubbaiah v. Chilakamarthi Kotaiah 1 does number assist the case of the appellants.
4, 5, 6 8 Two annas share Defendant No.
In 1923 Udit Narain and the sons of Shyam Narain instituted suit No.
The trial Judge held that by the decree in suit No.
133 1 a of the Constitution arises out of suit No.
I and his brothers and their father admitted before the panchas that all the properties held by the parties the group of the plaintiff and the defendants 1st party including those acquired in the names of the defendants 1,3,6 and Bidya Narain Choudhary as also those acquired in the name of the defendant 24, who is the son of the sister of the defendants 1,2 and 6, were the joint properties of the plaintiff and themselves, and they also admitted that the plaintiffs share in all the properties was half and it was suggested that a fist of all the joint properties should be drawn up for the purpose of partition and accounts and it should be looked, and by paragraph 19 the plaintiff Bijendra Narain claimed a share in the properties including the properties standing in the name of the 24th defendant.
17 of 1942 of the file of Subordinate Judge, Purnea, filed by Bijendra Narain son of Ishwari Narain against Mode Narain, Hari Narain and Rajballav Narain, sons of Bidya Narain, and others for a decree for partition and separate possession of a half share in the properties described in schedules A, B C to the plaint.
756 of 1964.
One Mankishun had four sons Talebar, Indra Narain, Chandra Narain and Shyam Narain.
By paragraph 13 of the plaint it was averred that the defendant No.
He did number set up the case that the 24th defendant acquired the properties for him, number did he plead that the properties were acquired for some person through whom he was claiming.
The suit was decreed by the Trial Court and in appeal to the High Court of Judicature at Patna the decree was companyfirmed with a slight modification.
Bashisht Narain the 24th defendant submitted that the properties purchased in his name were obtained with the aid of his own funds and that he had numberconcern with the other defendants.
The rest of properties are held by each of the defendants 4 to 8 in equal shares.
