VIKRAMADITYA PRASAD, J. - (1.) THIS first appeal has been preferred against the judgment and decree passed in Title Partition Suit No. 103/1985 by the Subordinate Judge, III, Jamshedpur, whereby and whereunder a preliminary decree for partition of 1/2 share in the suit properties was directed to be prepared with a further direction that the plaintiff would be entitled to appoint a Pleader Commissioner for demarcating l/3rd share.
(2.) THE plaintiff -respondent, Santulal Khandelwal, has filed the Title Partition Suit No. 103/1985 against his two brothers, namely, Bhanwar Lal Khandelwal and Ramanand Khandelwal. The father is admittedly dead. It was a suit for partition of his l/3rd share in the joint family properties by metes and bounds. The suit land consists of a double storeyed building standing over a piece of land measuring 6 -1/2 Kathas approximately, appertaining to R.S. Plot No. 1628, R.S. Khan No. 19, Recent Survey Plot No. 146, Municipal Holding No. 127, Station Road, Kashidih, and valued at Rs. 2,50,000/ -. Another suit land is a pucca building standing on holding, No. 178B, Baghbera Area, Kashidih in Sak -chi, Jamshedpur. According to the plaintiff originally there was a Hindu Undivided Family and in that very stands, Ganpat Khandelwal who was the brother of Suraj -mal Khandelwal ''father of the plaintiff and defendants, had purchased a piece of land with some kutcha structure at Kasidih and with the joint fund Of H.U.F, a pucca building was constructed and the plaintiff and defendants and their father had half share in the land and house at Kasidih and Ganpat Khandelwal had half share in it. Then 20 years back the land at Kasidih was partitioned between Ganpat Khandelwal and Surajmal Khandelwal and since the said partition, Ganpat Khandelwal remained in his possession of share and Surajmal Khandelwal came to his separate possession as Karta of H.U.F. consisting of himself and his sons (who are the plaintiffs and defendants) and that H.U.F. is the owner of the properties in suit. After the death of Surajmal Khandelwal, the defendants and plaintiff continued to possess the suit properties described in Schedule A and B. As the father was apprehensive of dispute between the sons, so on 19.2.1977, a deliberation was made as to how the joint family properties should be divided amongst the brother. There was no dispute that the Sackhi House and the business carried thereon, which was being looked after by defendant No. 1, Bhanwarlal, shall be separately allotted. In the Schedule A house, in which substantial improvements had been made after taking loan from Bank of India, the Bank had been inducted as tenant on a monthly rental of Rs. 3268/ -. The whole of the ground floor minus the common passage and the staircase and two shops and godown situated on the north western extremity of the holding was let out to the bank and had been in possession and control of the bank. It was specifically decided in that meeting that the portion let out to the bank shall be divided half and half between the plaintiff and defendant No. 2, Ramanand, and they would be entitled to share equally the rental income from the bank. It was further decided that out of the two shops and one godown situated on the north eastern corner of the building, the eastern shop and godown attached therewith shall be allotted to defendant No. 2, while the western shop shall go to the share of the plaintiff. The passage and the stair case would remain common between the parties. The aforesaid deliberation was reduced into the writing. which was scribed by the defendant No. 2 himself and the document was duly signed by all concerned namely father, Surajmal Khandelwal, the plaintiff and the defendants. The document aforesaid further provide for division of the first floor amongst the plaintiff and the defendant No. 2 in the manner indicated therein. It was pleaded by the plaintiff that the bank loan was fully paid by the end of the year of the year 1981 and in 1982 and after the death of the father, the defendant No. 2 started creating trouble in order to appropriate himself the entire monthly income from the bank and deprive plaintiff of his due share in the schedule B property. The defendant No. 2 started appropriating the entire income from the bank though the income from the Jugsalai property was added to the income of the firm M/s. Bhanwarlal Ramanand by seriously augmenting its tax liabilities; so using under influence on defendant No. 1 so that he would shoulder the income -tax liability arising out of the income from the Jugsalai house only if the entire portion in which the bank was a tenant was allotted to his share. The defendant No. 1, in order to reduce the burden of income -tax liability of his firm, was also siding with the defendant No. 2 and both of them prevailed upon the plaintiff and persuaded him much against his will to sign the impugned deed of family arrangement dated 1.4.1982 even though its terms contained therein were unconsciousable in nature and contrary to all principle of law and equity. In the aforesaid circumstances, the document dated 1.4.1982 came into existence under machanization of defendant No. 2 and the plaintiffs signature was taken under coercion and duress and the plaintiff could not withstand to fit. Thus, that document is a nullity and void. The further case of the plaintiff is that that document was not acted upon because the portion marked as 'C ' in the map accompanying the document was to remain joint in the hands of the plaintiff and the defendant No. 2, but the entire area has been let out to the bank and bank is exercising its control over the same and the portion marked as 'M ' in the sketch map was to be allotted to the share of the plaintiff but the said area is being used by the bank on which the bank has also installed a generator set and the western half portion of the roof and the first floor was to be allotted to the plaintiff where he could make constructions according to this needs but in the month of June, 1983 the plaintiff collected building materials and cement for making construction on the western portion but he was prevented by the defendant No. 2 from doing so. Though in paragraph No. 11 of the plaint, it was stated that the plaintiff and defendants remained in joint possession of the schedule properties, but the aforesaid fact was also alleged by the amendments. Then the further case of the plaintiff in paragraph No. 12 is that there was no family partition by metes and bounds, a deed purported to be a memorandum of partition was brought into existence by the defendants by coercion, the defendants got the alleged memorandum of partition executed by the plaintiff, though there was no partition on 31.3.1982 as mentioned in the said memorandum of partition. The said memorandum of partition, according to the plaintiff, is a fraudulent one designed only to deprive the plaintiff of his l/3rd share in the suit land. The plaintiff was in possession of the northern portion of the first floor of the building described in schedule 'A ', which he was using as his residence and the ground floor was occupied by the bank as tenant, the rent of which was fully realized by the defendant No. 2 and the shops in the ground floor were also in possession of the defendant No. 2, The passage in the north eastern side of the ground floor, which is purported to have allotted to the share of the plaintiff, is also occupied by the bank where they have fitted their generator. To sum up -the real case of the plaintiff then is that there has been no partition by metes and bounds and in the alleged memo of partition dated 31.3.1982 is a family arrangement prepared under coercion, fraud not having been acted upon, by which the plaintiff has been allotted much less share than that to which he is entitled to and to deprive the plaintiff of his legitimate share in the properties described schedule 'A ' and 'B '. The defendant No. 1 and 2 filed separate written statements. According to defendant No. 1. Bhanwarlal Khandelwal, the continuance of the joint family status was denied. It was pleaded that it was wrong on the part of the plaintiff to say that he had been deprived of his legitimate share in the partition. In paragraph 15, it was said that the quantum of national share of the plaintiff is l/3rd and that the plaintiff having demanded partition was also denied, According to this defendant, in the year 1977 Surajmal Khandelwal attempted at a partition of the joint family assets and by mutual understanding, the plaintiff and defendants continued in possession of the specific portions of the suit properties and were in enjoyment of the usufracts thereof and his mutual arrangement went till the death of Surajmal Khandelwal in the year 1982. Thereafter differences cropped -up between the brothers, then a partition was made of the entire suit properties by metes and bounds and subsequently on 1st April, 1982, a memorandum was drawn and in the terms of the memorandum dated 1.4.1982, the properties had been partitioned and a prayer was made to dismiss the suit. In the lifetime of the father, there was no partition. The date of actual partition had not been given in the entire written statement of the defendant No. 1, a particular phase "subsequently on 1st April 1982, a memorandum was drawn up" has been specifically used in paragraph 23 of the written statement.
(3.) ACCORDING to the defendant No. 2, there was no joint family business carried on at Jamshedpur by the parties and their father and the father had no concern with any business.With regard to schedule A land, it has been averred by the defendant No. 2 that it was acquired out of his own fund and thereafter building were constructed over the said land this defendant constructed this building on that after taking loan from the Bank of India. A this defendant No. 2 was young at the acquisition of the land at the desire of the father the land was acquired in his name. Kashidih land. Schedule B, according to this defendant, was acquired by Ganpatlal Khandelwal and the joint family consisting of the parties and the father had no concern with the acquisition of the land; subsequently pucca building was constructed over the said land with the joint family fund and by amicable partition, the kutcha structures over the said land were given to Ganpatlal Khandelwal. This defendant pleaded that half of share of schedule 'B ' property to the suit was allotted to the parties to the suit and not to their father as karta of the joint family and the said property belonged to the parties of the suit and never belonged to the alleged H.U.F. and during the lifetime of the father, there was separation and disruption of joint family and the partition never took place during the life time of their father. There was complete partition of the suit property on 31.3.1982 and therefore no partition had taken place. On 1.4.1982, it was duly executed by all the brothers, i.e. parties to the suit. The allegation that this memorandum was executed by the plaintiff under duress and coercion had been denied. It was further averred that there were several properties in the name of defendant No. 1 and his wife and son, but this defendant No. 2, in order to purchase peace, agreed to the partition of the suit properties. This defendant would have been benefited if all those properties would have been taken into account. The Bank is exclusively the tenant of the defendant No. 2 and the rent is being realized by him alone and the south western corner of the verandah was also in occupation of the bank as tenant and is being used as cycle stand for the employees of the bank and the said small room is used as generator room by the bank since long before the aforesaid partition. It was further pleaded that these are shown in the map in the name of the plaintiff. It is actually due to inadvertence. It was allotted to the defendant No. 2. It was further stated that the plaintiff is in possession of the southern portion of the 1st floor of the building and not in the northern portion and the entire northern portion of the first floor of the building have been allotted to the defendant No. 2 and he is in possession of the same. The claim of the plaintiff that he did not obtain adequate share in the suit is absolutely false. Ultimately, it has been submitted that the suit properties are not the joint properties and not liable to be partitioned and the plaintiff has no share in the same. Accordingly, he has prayed for dismissal of the suit.;