- (1.) THIS is a defendent's Second Appeal in a suit for partition. The appellant was the third defendant in the suit, and the appeal from the preliminary decree is confined to the claim made on her behalf that she is entitled to a provision being made for the payment of the sum of Rs. 11,000 by the joint family before the division of its property among the separating coparceners. The following are the relevant facts:-
(2.) THE plaintiff and the defendants Nos. 1 and 2, who are respectively respondents Nos. 1, 2 and 3 in the Second Appeal in this Court, are the sons of Sri Shyam Lal. THE third respondent, who was the second defendant, is the defendant appellant's husband. According to the plaintiff, the three brothers were living and messing separately, although in separate portions of the same ancestral house, and that the father Sri Shyam Lal died on the 6th July, 1959, and after him the management of the joint family property, namely, the three houses specified in Schedule to the plaint, came to be vested in the first defendant:but, because of apathy of the members of the family, the property was not being managed properly and it was necessary to have a partition between the brothers. Paragraph 7 of the plaint specifies certain disputes between the brothers. Clauses (i) to (vii) thereof relate to certain disputes between the brothers about property No. B of Schedule I, Clauses (viii) and (ix), which are relevant for the purposes of the present appeal, run as under:- " (viii ). That the other dispute relates to deposit in trust of a considerable amount by defendant No. 3, in the Firm Messrs Murlidhar Shiamlal, which was owned, managed and worked by defendant No. 1 and the plaintiff's father. (ix) That the defendant No. 3 claims that as the amount was deposited by her in Trust she is entitled to the repayment of her amount before the joint immoveable property is divided amongst the brothers and claims a charge over the property before partition and asserts that before partition is made her first charge should he discharged. " The third defendant appellant pleaded as follows in paragraphs 13 and 14 and 15 of her written statement:- "13, That this defendant deposited in trust a sum of Rs. 11,000/- her stridhan money with the firm Murlidhar Shyamlal and it has remained unpaid till now. 14. That this defendant did not make any demand simply because of the relationship. 15. That this defendant has a first charge for the aforesaid amount on the joint property and it is necessary that in the event of a decree for partition necessary provision for its repayment be made in the decree. " The first defendant denied the plaint allegations on this point in these words:- "7 (viii), para 7 (viii) is not admitted. "7 (ix), para 7 (ix) is not admitted and is denied and it is submitted that Shrimati Malti Devi defendant No. 3 is not entitled to have any charge declared over the said property. "
(3.) IN the additional pleas paragraph 18 reads thus:- "18. That it is absolutely false that Shrimati Maiti Devi defendant No. 3 deposited any sum whatsoever in the family firm out of her own stridhan funds. The plaintiff has deliberately concealed the important fact that the sum credited to the name of Shrimati Malti Devi virtually represented joint family funds and she was never in a position to deposit any sum in the firm as her own. " Under Order 10 Rule 2 of the Code of Civil Procedure, the first defendant made the following statement on the 8th March, 1965:- "the following properties are still partible. No properties or assets of the joint Hindu family of the parties have been partitioned as yet. The sum of Rs. 11,000/- entered into account books of the firm M/s. Murlidhar Shyamlal in the name of Smt. Maiti Devi defendant No. 3 really belonged to my mother Smt. Kiran Devi. Smt. Kiran Devi died in August, or September, 1959. ";