IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.69 of 2009 MAHENDRA PRATAP ARYA SON OF LATE RAMESHWAR PRASAD RESIDENT OF ABDLAS LANE, MACHHUATOLI, P.S. KADAMKUAN AT AND DISTRICT PATNA. …….DEFENDANT-APPELLANT-APPELLANT. Versus 1. NARENDRA KUMAR@BABANJI SON OF LATE RAMESHWAR PRASAD. 2. AMIT KUMAR MINOR SON OF NARENDRA KUMAR UNDER THE GUARDIANSHIP OF HIS FATHER NARENDRA KUMAR. ……..PLAINTIFFS-RESPONDENTS- RESPONDENTS IST SET. 3. BIRENDRA KUMAR 4. DEVENDRA KUMAR SINHA 5. NARESH KUMAR SINHA @ SIBUJI 3 TO 5 SON OF LATE RAMESHWAR PRSAD. 6. OM PRAKASH GUPTA 7. SANJAY KUMAR 8. SURESH PRASAD @ SURESH KUMAR ALL SON OF BIRENDRA KUMAR. 9. DINESH KUMAR SON OF DEVENDRA KUMAR SINHA. 10. AMRITANSHU KUMAR MINOR SON OF DEVENDRA KUMAR SINHA AND UNDER GUARDIANSHIP OF HIS DEVENDRA KUMAR SINHA. 11. ABHISHEK KUMAR SINHA MINOR SON OF NARESH KUMAR SINHA UNDER THE GUARDIANSHIP OF HIS FATHER NARESH KUMAR SINHA. FROM 1 TO 11 ALL ARE RESIDENT OF ABULASLAND, MACHHUATOLI, P.S. KADAMKUAN, AT AND DISTT. PATNA. 12. KAMLA GUPTA, WIDOW OF LATE CHANDRADIP PRASAD AND D/O LATE RAMESHWAR PRASAD R/O SATIMPURAHRA, P.S. KADAMKUAN AT AND DISTT. PATNA. 13. MEENA KUMARI W/O RABINDRA KUMAR AND R/O LATE RAMESHWAR PRASAD R/O 2 VILLAGE AND P.O SIRGHARA P.S. MAHUA DISTT. VAISHALI. 14. SABITA KUMARI W/O LATE ASHOK KUMAR D/O LATE RAMESHWAR PRASAD R/O VILLAGE AND P.O. RAMPURA NAI BASTINAKSHA ROAD VANANAS (U.P.) 15. AMIT SHIVKAR 16. SOMIT MADHUKAR BOTH SON OF MAHENDRA PD. ARYA R/O ABULAS LANE, MACHHUATOILI P.S. KADAMKUAN AT AND DISTT. PATNA ….DEFENDANTS-RESPONDENT-RESPONDENTS. ----------- For the appellant : M/s Kaushal Kumar & Abdul Wadood, Advocates ------- 05 22.11.2010 The appellant is aggrieved by the judgment and decree dated 28.11.2008 passed by the Additional District Judge IVth, Patna in Title Appeal No.108 of 1999 whereby he has dismissed the appeal and affirmed the judgment and decree dated 21.09.1999 passed in Title Suit No.149 of 1989/26 of 1997 by the Sub-Judge IV, Patna. Title Partition Suit No. 149 of 1989/26 of 1997 was brought by the plaintiffs against the mother, brothers and sisters. According to the plaintiffs, Rameshwar Prasad died leaving behind five sons, namely, Birendra Kumar, Devendra Kumar Sinha, Mahendra Pratap Arya, Narendra Kumar alias Baban Ji and Naresh Kumar Sinha alias Sibu Ji and three 3 daughters, namely, Kamla Gupta, Meena Kumari and Sabita Kumari. The family was governed by joint Hindu Mitakshra family and they were coming in joint possession of the entire joint family properties. During the lifetime of Late Rameshwar Prsad, his sons became separate in mess and business from the year 1974, but the properties of the joint family remained joint. Rameshwar Prasad died in the year 1979 leaving behind his wife Shyam Sunder Devi, five sons and three daughters as stated above. Thus, the plaintiffs sought partition of their share to the tune of 10/63 of the properties as described in Schedule I of the plaint. Written statement was filed by the defendants. Defendant No.1 Shyam Sunder Devi had accepted the claim of the plaintiffs. Defendant No.2 as well as defendant Nos. 7, 8 and 9 had also accepted the admitted genealogical table given in the plaint and relationship between the parties and also that after the death of Rameshwar Prasad in the year 1979, his interest in the joint family properties devolved among his widow, five sons and three daughters. Similarly defendant Nos. 3, 10 and 11 also more or less accepted the share of the plaintiff to be 10/63 in the suit properties. However, defendant No.4 i.e. appellant herein filed written statement asserting that 4 the suit is bad for partial partition of properties and further that the subsequent acquisition of the properties should also have been included for partition. That apart, the purchases in the name of wives of different brothers should also be included for partition. The trial court has decreed the suit after recording a finding that the plaintiffs are entitled for 10/63 share of the joint family properties and similarly defendant No.1, widow of Rameshwar Prasad, would also be entitled for same share. Similar would be the case with regard to other sons. However, the daughters would be entitled for share to the tune of 1/63 share each. The trial court has also negated the claim of the defendant No.4-appellant that the property acquired subsequently in the name of the wives of the brothers should also be partitioned holding that none of other brothers had stated that those properties acquired in the name of females were also acquired from the joint family fund and even this defendant is also having a case that all the brothers became separate in mess and business and the defendant No.4 was also engaged in business of clothes separately from the year 1969 itself. Thus, the suit was decreed. The judgment and decree was challenged by 5 defendant No.4 by filing a Title Appeal No.108 of 1999, a separate Title Appeal No.97 of 1999 was also preferred by Birendera Kumar and others. However, the lower appellate court also affirmed the findings recorded by the trial court and upheld the judgment and decree. I have heard learned counsel for the appellant. It has been canvassed on behalf of the appellant that the share was defined by his father in his lifetime as 1/7 each. Thus, the mother was not entitled to take the share of 10/63. It is also submitted that defendant No. 1 had also stated in his written statement that father Rameshwar Prsad had defined the share as 1/7 each between himself and five sons. Secondly, it is submitted that defendant No.1 was not competent to execute the sale deed in favour of defendant No.3, one of her son namely Devendera Kumar Sinha, regarding her share during the pendency of the suit without any permission having been taken from the court. Thus, it is urged that the court below should have thrown away the sale deed executed by defendant No.1 in favour of defendant No.3. However, I do not find any substance in the submissions raised on behalf of the appellant. It is nobody’s case that the partition by metes and bounds had taken place in 6 the lifetime of the father. Though, there is variation about the year of the alleged separation between the parties in mess and business. Thus, once the father, namely, Rameshwar Prasad having died in jointness with his sons, the shares upon partition, as has been defined by the court below, does not suffer from any error. So far the sale deed executed during the pendency of the suit concerned, it is correct that the transaction during the pendency would be in the teeth of the principle of lis pendence. However, since the original defendant No.1 has transferred her share and had been alloted that much of share, the same would make no difference as has been noticed by the lower appellate court. In the opinion of this Court, the appellant could not point out any illegality committed by the courts below leading to substantial question of law. As a result, this appeal fails and is, accordingly, dismissed. Spd/-/sanjay-II ( Dr. Ravi Ranjan, J.)