T.S.Misra, J. - (1.) This appeal has been filed by the defendant No. 4. It arises out of a partition suit filed by Sri Mahesh Prasad, who is respondent No. 3 in this appeal. The facts giving rise to this appeal in brief are as follows:- Sri Raghunath Prasad was married to Smt. Triveni Devi, who is dead. She gave birth to Tribhuwan Prasad, Rikheshwar Prasad and Gokul Prasad. Gokul Prasad is also dead. Raghunath Prasad married Subhagwati who gave birth to Mahesh Prasad, Kishan Prasad, Rajendra Prasad, Bindeshwari Prasad and Kunwar Prasad is also dead. The aforesaid Mahesh Prasad filed suit No. 315 of 1965 for partition impleading Raghunath Prasad, Smt. Subhagwati as well as all other sons of Raghunath Prasad as defendants. Me alleged that the ancestral joint family property was partitioned amongst his father and uncles in pursuance of a final decree in suit No. 75 of 1930, in the court of Civil Judge, Agra. As his uncle Trilochan Singh died issueless, another partition was affected by a registered deed dated 7/9 April, 1941. Thus the properties mentioned in schedule 'A' to the plaint which fell to the share of defendant No. 1 and his branch and which were said to be ancestral properties were sought to be partitioned and the plaintiff claimed 1 /8th share in the said properties. The defendant No. 4 contested the suit, inter alias, on the grounds that the attitude of his father, defendant No. 1, towards him and his three real brothers has been unfair and partial due to the influence of defendant No. 2; that he and his brother defendant No. 3 had been living out of Agra for a long period; that the defendant No. 1 had pocketed the zamindari abolition bonds of the value of about Rs. 45,000/-; that the defendant No. 1 sold some valuable properties, viz., shop situate in Agra and pocketed the sale proceeds thereof and that the defendant No. 1 also usurped entire jewellery of Smt. Triveni Devi as well as that jewellery which he has received under the decree passed in suit No. 75 of 1930. He gave a notice to the defendant No. 1 for partition of the entire family assets in November 1960 on receipt of which an oral family settlement was arrived at between the parties in pursuance of which he and the defendant No. 3 were allotted the residential house at Agra and a grove, agricultural holding and a 'katcha' house in village Son. The costly carpets, furniture and other goods were taken away from the residential house by the plaintiffs and the defendant Nos. 1, 5, 6 and 7. He also pleaded that the suit is bad because all the family assets including zamindari bonds, sale proceeds of the shops, jewellery of Smt. Triveni Devi as well as her jewellery which the defendant No. 1 had received in pursuance of the decree passed in suit No. 75 of 1930 have not been included in the suit. He alleged that as the defendant No. 1 and his other sons by the second wife want to reside from the aforesaid family settlement this suit has been got filed to cause injury to the defendant No. 4. The defendant Nos. 1 and 2 in their written statement alleged that the dwelling house in dispute, if partitioned would not remain fit for dwelling purposes and as such those defendants who wished to have their share demarcated by metes and bounds should be paid the value of their share. They also alleged that the grove in village Son, district Agra and the bhumidhari plots were not liable to be partitioned inasmuch as the same were the absolute 1 property of the defendant No. 1. The defendant No. 3 in his separate written statement raised the same pleas , which were set up by the defendant No. 4.
(2.) The learned trial court held f that the properties Nos. 3 to 5 mentioned in the schedule 'A' of the plaint were the self acquired properties of the defendant No. 1 and were not liable to be partitioned. In regard to other properties the suit for partition and possession of ⅛th share of the plaintiff therein was decreed. The trial court also held that no compromise as alleged by the defendant Nos. 3 and 4 in their written statement took place between the parties. While dealing with the plea for partial partition, the trial court observed that Raghunath Prasad being the father of the plaintiff and defendants No. 3 to 7 was the manager of the family and gave education to them and incurred expenses in their marriages. He also incurred expenses for running the family. The defendant Nos. 3 and 4 did not allege any fraud or misappropriation or improper conversion of any property by the Manager. The trial court placed reliance on the statement of Raghunath Prasad which was to the effect that whatever ornaments he received from his wife Smt. Triveni Devi and on the basis of partition decree passed in suit No. 75 of 1930, he had given the same in the marriages of his sons and that no ornaments and zamindari compensation; bounds were thus available for partition at the time of the filing of the present suit. The trial court also held that the sale proceeds of the shop sold in 1957 were also not available for partition at the time of the suit; hence the suit was not bad for partial partition.
(3.) Aggrieved by the said decision Sri Rikheshwar Prasad filed the first appeal No. 483 of 1964. The learned appellate court below on a consideration of the evidence, recorded a concurrent finding that no family settlement was effected between the parties on 31st December, 1960 as alleged by the appellant. The appellate court below also held that at the time of the institution of the present suit for partition the jewellery and money received on account of compensation and rehabilitation bends were not available for partition. It was held that the defendant No. 1 had to execute the sale deed, Ex. B-3 to pay off the joint family debts and to meet the legal necessity. It was, therefore, held that the said suit was not bad on account of partial partition. In regard to the cross-objection filed by the plaintiff, the appellate court below held that the properties Nos. 3, 4 and 5 were not joint family property but were the self acquired property of Raghunath Prasad and as such were not liable to be partitioned. The appeal and the cross-objections were, therefore, dismissed and the decree passed by the trial court was confirmed.;