FIRST APPEAL No.126 OF 1998 Against the judgment and decree dated 23.2.1998 passed by Sri Kedar Nath Ambastha, Sub-Judge-Ist, Banka in Title (Partition) Suit No. 28 of 1995. SATYA NARAYAN BURNAWAL ………… Plaintiff-Appellant Versus SMT. SUBHADRA DEVI & ORS ……….. Defendants/Respondents ******** For the appellant : Mr. Shashi Shekhar Dwivedi, Sr. Advocate Mr. Rakesh Chandra, Advocate Mrs. Sangeeta Sharma, Advocate Mr. R.K. Dubey, Advocate For the respondent Nos. 1, 2 & 3 : Mr. Ashok Kumar Sinha, Advocate Mr. S.S. Pandey, Advocate For the respondent Nos. 4 & 5 : Mr. Rajeev Ranjan Jha, Advocate Dated : 21st day of April, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The plaintiff has filed this first appeal against that part of the judgment and decree dated 23.2.1998 passed by Sri Kedar Nath Ambastha, the learned Sub Judge 1st Banka in Title (Partition) Suit No. 28 of 1995 dismissing the partition suit in part. 2. The plaintiff filed the aforesaid suit claiming 1/5th share in the suit property except the property which stands in the name of Kaushalya Devi in which the plaintiff-appellant claimed 1/5tth share. Mungeshwar Sahoo, J. -2- 3. According to the plaintiff’s case Manbharan Modi was a common ancestor. He had two sons namely Ishwar Modi and Badri Modi. There had been partition between the two brothers on 13.8.1962 by a registered deed of partition. Therefore, the parities are not concerned with the property of Ishwar Modi. Badri Modi had two wives namely Kaushalya Devi, the first wife and Subhadra Devi, the second wife. Kaushalya Devi died in 1961 leaving behind his two sons and a daughter namely Laxmi Narain, defendant No.4, Sayta Narain, plaintiff-appellant and Manju Devi, the defendant No.15. Badri Modi was defendant No.1 and second wife Subhadra Devi is the defendant No.2 and her son Purshottam is the defendant No.3. The parties are joint and immovable properties are joint family properties. The defendant No.1 is the Karta and the manager and in that capacity he is managing all the properties and their affairs including the shop business on behalf of the members of joint family. The immovable properties detailed in Schedule A at the foot of the plaint were acquired by purchase out of the joint family fund and common nucleus and contribution of all the male members of the joint family in the name of different members of joint family. Some of the suit properties are the ancestral properties. Schedule B properties is also joint family properties. There had been no partition between the parties and, therefore, there is unity of title and possession. Some of the properties have been sold by the defendant - 1st party in favour of defendant - 2nd party. Defendant No.1 is mismanaging the entire suit property therefore, the plaintiff demanded 1/5th share in Schedule A and B properties and 1/3rd share in the property of Kaushalya Devi, the first wife of Badri Modi. The defendants appeared and filed four sets of written statement. -3- 4. The defendant Nos. 1 to 3 filed joint contesting written statement. The defendant Nos. 4, 5 and 15 filed separate written statement. The defendant No. 15 who is sister of plaintiff and defendant No.4 admitted the case of the plaintiff and relinquished her share and interest in the suit property in favour of the plaintiff. Mainly the defendant Nos. 1 to 3 contested the suit. Their defence is that there is no unity of title and possession between the plaintiff and defendant, 1st set. The plaintiff and defendant Nos. 4 and 5 are separate in all respect i.e. mess, residence, worship and business and the defendant No.1 is not the Karta. Their further defence is that there was no ancestral property and all the properties were acquired by defendant No.1 out of his self earning, therefore, the properties are self acquired properties of defendant No.1. He had acquired in his own name and also in the name of his sons and his wives. The business was also started by defendant No.1 in his personal capacity. The defendant No.1 is living separately from the plaintiff since long ago. There is no joint movable property and the details of the properties mentioned in Schedule B are imaginary. 5. The defendant No.4 Laxmi Narain Burnawal filed written statement alone stating that his wife defendant No.5 had acquired the land of Khata No.23 Khasra No. 794 at Mouza Candan out of her Stridhan and constructions have been made and a shop is running which is personal business. The defendant No.1 has got substantial landed property in partition with his brother in the year 1962 but he sold the entire property and out of the sale proceed and the joint family nucleus Schedule A property had been purchased. His wife also purchased Khata No. 220/5 Khasra No. 575/859. Other properties are joint family properties. Sharda Devi the defendant No.5 wife of defendant No.4 supported the pleading of her husband. -4- 6. On the basis of the above pleadings of the parties, the learned court below framed many issues and while deciding the question of unity of title and possession and self acquisition held that Badri Modi, the defendant No.1 had got altogether 84 decimal including Pacca house which he obtained in partition from his brother Ishwar Modi. The learned court below also found that the defendant No.5 Sharda Devi is the owner of the property standing in her name i.e. Khata No. 220/5 survey plot No. 575/805. Kaushallya Devi is the owner of survey plot No. 794 under Khata No. 23 and on her death it devolved on her sons and daughter Manju Devi. The learned court below also found that there was no sufficient nucleus of joint family to purchase any of the land which are suit properties rather Badri Modi had purchased those properties which are in suit out of his own personal money without any assistance from any of his sons and those properties are the self acquired property of the Badri Modi, the defendant No.1. The learned court below also held that the plaintiff has got 1/3rd share in plot No. 624 and 815 under Khata No. 24/5 which is standing in the name of plaintiffs, Purshottam (defendant No.30 and Subhadra Devi. Ultimately, the learned court below held that there had been family arrangement and the plaintiff and the defendant No.4 separated completely from their father and some properties and houses were allotted to them as mentioned in paragraph 17 of the judgment. On the above findings, the learned court below decreed the suit in part and dismissed the suit with respect to the property held to be self acquired property of defendant No.1, Badri Modi. 7. The learned counsel for the appellant submitted that the main dispute was with regard to the finding of the court below to the effect that the properties which are standing in the name of defendant -5- No.1 Badri Modi is his self acquired property. The plaintiff was claming 1/5th share in the said property on the ground that it is joint family property. This question now does not arise for decision because of the fact that the defendant No.1 Badri Modi died during the pendency of the first appeal. Now therefore, even if it is joint family property or self acquired property of the defendant No.1 plaintiff will be entitled for his 1/5th share. So far this submission of the learned counsel for the appellant is concerned no dispute is raised on behalf of the learned court for the respondents. The learned counsel for the respondents submitted that on the death of defendant No.1 the properties held to be his self acquired property will devolve on his all heirs i.e. plaintiff 1/5th share, defendant No.4 1/5th share, defendant No.15 1/5th share, defendant No.3 1/5th share and defendant No.2 1/5th share. However, the learned counsel for the appellant submitted that the defendant No.15 sister of the plaintiff has filed written statement wherein she has specifically stated that she has relinquished her share and interest in favour of the plaintiff. Therefore, her share may also be allotted in favour of the plaintiff. The learned counsel for the appellant did not press the interlocutory application No. 2011 of 2011 which was filed under Order 41 Rule 27 for additional evidence on the ground that it is not required because of the subsequent development. Accordingly, the said application is also disposed of. 8. In view of the above submissions of the parties and as has been admitted by them now there appears no question for decision in this appeal because of subsequent events. Since the defendant No.1 died therefore, the question as to whether the properties are self acquired property of the defendant No.1 or is joint family properties, is not required to be decided as in both cases, it will devolved equally on his heirs on his death. All the properties held by the learned court -6- below to be the self acquired property of defendant No.1 on his death will devolve on his five heirs i.e. two sons and daughter from first wife and second wife and one son from second wife equally. So far relinquishment of defendant No.15 in favour of plaintiff is concerned it is in between the defendant No.15 and the plaintiff. Admittedly, defendant No.15 has got 1/5th share in the property if she has relinquished and will not claim her 1/5th share the same may be allotted in favour of the plaintiff. 9. In view of the above facts and circumstances of the case taking into consideration the subsequent events, in my opinion the impugned judgment and decree are liable to be set aside. 10. In the result, this first appeal is allowed and that part of the judgment and decree against which this appeal has been filed is set aside and that part of the plaintiff’s suit is also decreed. In the facts and circumstances of the case there shall be no orders as to costs. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 21st April, 2011 S.S./N.A.F.R.