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2007 DIGILAW 12 (PAT)

Surya Narain Mishra v. Bhubneshwar Mishra

2007-01-04

BARIN GHOSH, MADHAVENDRA SARAN

body2007
Judgment BARIN GHOSH and MADHAVENDRA SARAN JJ. 1. There is a contention that the appeal has abated. It appears that Bhubneshwar Mishra died during the pendency of the appeal. However, the sons of Bhubneshwar Mishra namely, Sadanand Mishra and Harishankar Mishra are already on record. Similarly, Anamti Kumari also died during the pendency of the appeal, but she was brought on record in place and instead of Jagdish Bhatt along with her sisters Renu Kumari and Rekha Kumari,. Lakshmi Nath Mishra, Raghbendra Mishra and Lalita Mishra, who were brought on record in place an instead of Ganga Prasad Mishra along with Ravindra Nath Mishra and Surendra Nath Mishra, also died during the pendency of the appeal. At the same time Smt. Gaitri Devi, who also died during the pendency of the appeal, was also brought on record in place of Radha Mohan Mishra along with her sister Subhadra Kumari. In as much as the estate of Bhubneshwar Mishra, Jagdish Bhatt, Ganga Prasad Mishra and Radha Mohan Mishra are still represented the appeal did not abate by reason of the death of the persons named above. 2. One Jagdeo Prasad Sao also died during the pendency of the appeal. Jagdeo Prasad Sao is a stranger to the joint family whose properties were sought to be partitioned by filing the partition suit. Jagdish Prasad Sao claimed to have purchased some of the joint properties, but it was not contended in the plaint that such pruchase is in-effective and not binding on the plaintiffs. In view of death of Jagdeo Prasad Sao we are of the view that appeal did not abate. 3. The partition suit so filed by the plaintiffs was dismissed by the trial court holding that the parties to the joint family, to which plaintiffs belonged, got separated in relation to the properties being the subject matter of the suit. By and under the judgment and decree passed by the first appellate Court the judgment and decree passed by the trial court dismissing the suit has been set aside and a preliminary decree has been passed in the partition suit. 4. By and under the judgment and decree passed by the first appellate Court the judgment and decree passed by the trial court dismissing the suit has been set aside and a preliminary decree has been passed in the partition suit. 4. Other defendants in the suit have accepted the preliminary decree so passed, but the branch of Krishna Mohan Mishra, one of the defendants in the suit, preferred the present appeal, principally contending that the self acquired properties of Manmohan Mishra, one of the brothers of Krishna Mohan Mishra and who was a defendant in the suit, could not be part of the joint family properties of which partition could be directed. 5. By an elaborate judgment the first appellate court dealt with the matter in extenso and accordingly, it is not necessary for us to deal with the matter in detail. Manmohan Mishra on 2.5.1944 while deposing in a suit stated that he and his father and his brothers are still joint, except that one of this brothers has been separated. This gentleman, Manmohan Mishra, was a defendant in the suit and he filed a separate written statement. In that written statement he pleaded that all the brothers were separated in 1925 and four identical documents were brought into existence on 30th April, 1925 to support such partition, which was signed by all the brothers. At the trial the alleged document dated 30th April, 1925 was not produced either by Krishna Mohan Mishra or his branch, who according to the case as made out in the appeal have allegedly received the properties of Manmohan Mishra, and thus they should be in possession of two of such documents. A person who deposed in 1944 that he is still joint with his brothers and then pleads that in 1925 he had separated from his brothers cannot be believed by any sensible person and accordingly, the first appellate court refused to believe Manmohan Mishra. 6. It is true that certain properties were purchased in the name of Manmohan Mishra. It may be possible that those properties were self acquired out of the monies earned personally by Manmohan Mishra without assistance of the joint family, but then the court noticed the intention of Manmohan Mishra to bring those properties purchased by him within the hotch pot of the joint family property by looking into the mortgage deeds of pre 1944. It may be possible that those properties were self acquired out of the monies earned personally by Manmohan Mishra without assistance of the joint family, but then the court noticed the intention of Manmohan Mishra to bring those properties purchased by him within the hotch pot of the joint family property by looking into the mortgage deeds of pre 1944. Those mortgage deeds suggest that though the properties were standing in the name of Manmohan Mishra the same were not mortgaged by Manmohan Mishra alone but by also at least one of his brothers along with him. 7. Learned counsel for the appellants submitted that in 1964/1966 certain such properties purchased in the name of Manmohan Mishra were transferred by Manmohan Mishra to the appellants It was contended that such act on the part of Manmohan Mishra should also have been looked at by the first appellate court. The conduct right from the day one of the purchases until a few years before filing of the partition suit demonstrates the real in- tention and accordingly, the conduct up to 1944 and immediately thereafter were the conduct to be looked at for the purpose of determining the real intent of Manmohan Mishra in treating the properties in question. We feel that the learned first appellate court did not make any mistake in that regard. 8. In those circumstances, there is no scope of interference in the matter. The appeal fails and the same is dismissed.