GOURANGA SUNDAR MITRA Vs. MOHENDRA NARAYAN MITRA

JUDGEMENT

(1.) This an appeal by defendants 1 and 5 against the judgment and decree of the Subordinate Judge of Dinajpur. The plaintiff sued as a pauper for declaration of title to and recovery of joint possession of one-fourth share of the properties in the hands oil defendants 1 and 5. The story of the plaintiff's right to the property may be very shortly stated thus : There was one Kali Prosad Mitra, the ancestor of the parties, who died in 1882. He had five sons. The eldest was Kunja Behary who died only recently after the decision of the case in the Court below. Rash Behary, the second son, was the father of the plaintiff, who died in 1893. Jadav was the father of defendant 1 who died in the year 1913. Trailokhya is defendant 4 in this suit and Brojo, defendant 2, in the suit. The plaintiff's case was that Kali Prosad had a homestead and some land. The income of the property which belonged to Kali Prosad was insufficient to maintain the family. Kunja Behary, the eldest son of Kali Prosad, lived with him, but Rash Behary came to live in Dinajpur with the object of getting into some sort of service. He managed to get employment under the district magistrate and began to earn considerable sums of money. Rash Behary brought Jadav to Dinajpur. Jadav, after having served in some capacity studied law and became a pleader by passing the pleadership examination. Jadav continued to practice in Dinajpur. The two brothers Rash Behary and Jadav lived together and they kept their earnings joint. These two brothers acquired the properties in question with their joint funds and certain other properties had been acquired by the profits of those properties, some of which are in the hands of defendant 5. The plaintiff had an elder brother Rajendra who died about 1919. The plaintiff says that Rash Behary, his father, was entitled to one-half of all the properties in suit and he being, one of the sons of Rash Behary is entitled to one-fourth share of all the properties. Bajendra's widow has been made defendant 3 in the suit. The defence of defendant 1 was that Rash Behary and Jadav were never joint, that all the properties in suit were acquired by Jadav with the income which he derived in the practice of his profession as pleader and the plaintiff cannot therefore claim any interest to any share of the property. The subordinate judge has passed a decree in favour of the plaintiff to the extent of one-sixth share of the properties claimed and has decreed joint possession of the undivided share of all the properties along with defendant 1.

(2.) The subordinate judge has come to his decision upon findings which are quite different from the allegations in the plaint. He apparently comes to the finding that all the five brothers were joint in food, worship and estate forming a normal Hindu joint family; but as Kunja has been satisfied with some of the properties of the joint family and does not claim any share of the disputed properties and as Trailokhya also does not claim anything having his own property, the properties in suit must he considered to have belonged to the three brothers Rash Behary, Jadav and Brojo. Upon that finding he lies come to the conclusion that the plaintiff is entitled to half of the one third share which belonged to Rash Behari.

(3.) It is regrettable that there was no appearance on behalf of the respondent in this case. The learned vakil who originally appeared in the case has no instruction to appear at the hearing. We had therefore to hear the entire case argued by the learned Government pleader who appeared for the appellant and we ourselves looked into the evidence in order to ascertain whether the decision of the subordinate judge was right or not.