Decided on March 04,1983



- (1.) This appeal is at the instance of the defendant no. 2 against the preliminary decree for partition. The suit was brought by the plaintiff, who was a minor represented by her mother, against the defendants, including the defendant no. 3 who is the father of the plaintiff no. 1. The plaintiff no. 1 being minor was represented by her mother. In that said suit the plaintiff no. 1 claimed that they are governed by the Mitakshara School of Hindu Law and the plaintiffs and the defendants belongs to joint Hindu family. It is alleged that during the life time of the plaintiff no. 1's grand-father; Late Ramchandra Sharma was the karta and managing member of the said joint family and on account of his old age, his eldest son Late Rameswar Prasad Sharma used to look after the joint family properties and business and after the death of Late Ramchandra Sharma, the said Rameswar Prasad Sharma was the Karta and since his death on 14-10-36, the defendant no. 1 has been the Karta of the joint family. The defendant no. 4 is the elder brother of the plaintiff and the said Rameswar Pr. Sharma adopted the defendant No. 4 as his son on 5-9-34. the defendant No. 12 is the widow of the said Rameswar Pr. Sharma and adoptive mother of the defendant no. 4. The genealogical table as hereinbefore stated of the parties to the litigation is attached to the judgment as Appendix "A". In the plaint the plaintiff no. 1 claimed 1/12th share in respect of the joint family properties. From the Geneological Table it has been found that the plaintiff is one of the co-sharers of one branch out of the 4 branches and she claimed 1/12th share, that is, 1/3rd or 1/4th share in the joint family properties. Similarly it will be found that the defendants nos. 7 and 8 claimed 1/27th share of the joint family properties out of the one branch of the Geneological Table. It will be found from the written statement filed by the defendants nos. 7 and 8 page 520, paragraph 13 as follows :- "That this defendant is in possession in his 1/27th share in the suit properties and in all joint family properties, business, assets funds, incomes profits etc. This defendant wants partition and accounts to the extent of 1/27th share in the same". These two written statements filed by the minor's mother were accepted after rejection of the written statement filed by the pleader-guardian on behalf of the minor. It is not necessary for me to state the other facts in view of the preliminary point taken by Mr. Mitter on behalf of the plaintiffs respondents, namely, that against these two persons, who are respondents in the appeal, that is, respondents nos. 8 and 14, the appeal was dismissed by order of this Court on 30th July, 1970. In view of the dismissal of the appeal as against these two defendants this appeal cannot continue and must be said to have been abated.
(2.) Mr. Ranjit Kumar Banerjee on behalf of the appellants contended that the minors respondents nos. 6 and 8's father is also represented as respondent nos. 6 and therefore he represented the minors and relied upon the case reported in 40 I. A., 151 at 155. It appears to me, however, in the facts and circumstances of the case that the minors have claimed interest adverse to their father and therefore the father cannot represent the minors and in fact in the Court below the minors were represented firstly by pleader guardian and thereafter on removal of the pleader guardian by their mother.
(3.) Mr. Saktinath Mukherjee on behalf of the appellants, however, contended with reference to the decree passed in the matter. In view of the decree passed, the partition between the parties was branch-wise partition and no allotment of co-parcenary wise as between the same branch was allowed and therefore non-representation of the two minors or for their absence the appeal does not abate as a whole. I have already said that the plaintiffs claimed 1/12th interest in respect of the joint family properties quite plainly means the suit was not for partition as between the branches but even among the co-sharers of each branch. The plaintiff applied for a decree of 1/12th share in the joint family properties. The defendants nos. 8 and 14 applied for 1/27th share of the joint family properties or on the other hand a coparcenar of each branch claimed their share within branches also.;

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