TATIA, J. - (1.) THIS appeal is against the judgment and decree dated 12. 4. 1979 passed by the court of District Judge, Banswara in Civil Original Suit No. 2/76 by which the court below passed the preliminary decree and also partly allowed the counter claim of the defendant.
(2.) THE plaintiff Smt. Rukmani, mother of the appellant along with Smt. Heera Mani, Smt. Bharat Kishori, Smt. Jai Laxmi and Smt. Renuka, who are the daughters of the plaintiff No. 1 and sisters of defendant No. 1 (appellant) filed the suit for partition of the joint family property alleging that the properties described in the schedule attached to the plaint are the joint family property of the plaintiff and defendant No. 1. Dhoori Lal was the husband of plaintiff No. 1 and father of the rest of the plaintiffs and defendant No. 1. In the life time of Dhoorilal, the relationship between Dhoorilal and his son defendant-appellant were not good and the defendant had to leave the house. Dhoorilal died on 5. 11. 1972. Before the death of Dhoorilal, plaintiff Nos. 2 and 3 married and after the death of Dhoorilal, plaintiff No. 1 got plaintiff No. 4 married on 13. 5. 1975. It is stated in the plaint that because of the immoral and terrorising activities of defendant No. 1, plaintiffs in the protection of the police have to leave the residential house of the plaintiffs in which they were residing since last 40 years and they have to take house on rent on 28. 3. 1974. THE plaintiff submitted that all the immovable properties in Schedule- `ka', `kha', `ga' and `gha' are joint family properties in the joint possession of the plaintiffs and the defendant No. 1. THE plaintiff requested for partition of the properties but the partition was not effected, therefore, suit for partition was filed claiming 1/3+1/18 share by plaintiff No. 1, 1/18 share each by plaintiffs No. 2, 3 and 4 and 1/18 by plaintiff No. 5 which may be separated and given to the plaintiffs and it was prayed that in case it is not possible to divide the property then they may be awarded amount in cash. In the Schedule attached to the plaintiff Items `ka', `kha', and `ga' are shown to be the shops and it is stated that the shop No. 1 is in possession of one tenant and plaintiff No. 1 is receiving rent at the rate of Rs. 130/- per month from 13. 5. 1973. In the shop described in Part `kha', there is a tenant who is also paying Rs. 25/- per month to the plaintiff No. 1 from 19. 2. 1973. The shop `ga' is in possession of the tenant and plaintiff No. 1 is receiving rent Rs. 30/- per month from 23. 3. 1975. The property `gha' has been shown as a residential house and it was stated that since 28. 3. 1974, the defendant is living in this house. There is one more property `cha' bearing plot Nos. 22, 23 and 24 and it is alleged that this property is in possession of the Municipal Board, Banswara and some portion of the property in front of property `ka' was acquired by the Municipal Board for which compensation is to be given by the Municipal Board in which plaintiffs are entitled for the compensation from the Municipal Board as per their share in the property. The defendant submitted the written statement and counter claim and stated that as per the Mitakshra Law, at the time of division of the property between father and son, the mother's share stands extinguished and mother is only entitled for the maintenance. It is further alleged that before 5. 11. 1972 only defendant No. 1 and his father Dhoorilal were co-parceners and with the death of Dhoori Lal on 5. 11. 1972, the joint family came to an end. The plaintiff Nos. 1, 4 and 5 were entitled for maintenance only and plaintiff Nos. 2 and 3 are not members of the family and they are the members of the family of their husband. Defendant No. 1, in his written statement, specifically admitted that his relationship with his father was not good and defendant No. 1 alleged that his father was having not a good life and he spent his life by misutilising the ancestral property causing loss to the defendant No. 1. It was admitted by the defendant No. 1 that till 5. 11. 1972 the property was in the control of the deceased Dhoorilal and after death of father of defendant No. 1, the property was in the control of plaintiff No. 1. It is also stated that defendant No. 1 was residing separately from his father since last 12 to 13 years from the date of death of his father. The defendant submitted that at the time of death of father, defendant No. 1 started living in the ancestral house since 5. 11. 1972. Not only this, the father of the plaintiff filed Civil Suit No. 45/70 against defendant No. 1 for injunction to restrain him from interfering in the family property in which there was injunction order against defendant No. 1 that he should not get vacated the shops from the tenants. It is alleged that one of the tenants in the shop, Harish Chandra and sub-tenant Harjasmal took the benefit of situation and took the plaintiff No. 1 at the house of Harjasmal and started initiating proceedings against defendant No. 1. The defendant also pleaded that in case of partition. movable and immovable both properties should have been included and the plaintiffs had not given details of the immovable properties like ornaments and utensils, therefore, the suit is incomplete and cannot be maintained till immovables are included in it.
(3.) IN addition to above, the defendant specifically pleaded that one property `raman Mansion' shown in the Schedule as `ka' is the personal property of defendant No. 1 and therefore, the plaintiffs are not entitled to any share in this property. The defendant also denied the share as claimed by plaintiff No. 1. In para 14 of the written statement, defendant No. 1 stated that he has not accepting the share of the plaintiffs but the property may be divided including movable and immovable properties otherwise the suit be dismissed. The defendant No. 1 claimed that the defendant is entitled for the mesne profits and in counter claim, the defendant claimed that defendant's share may be determined and separate possession be given to defendant No. 1. The court below by its order dated 30. 8. 1976 permitted reply to para No. 7 and 8 of the written statement of the defendant by the plaintiff. ;