Sita Ram vs Hanuman Prasad and Others

Mullick, J.—This is an application u/s 107, Government of India Act, asking the Court to direct the Subordinate Judge to make certain amendments in a plaint filed before him on the 19th June 1926.

The plaintiff sues his two brothers for partition of joint family property. In January 1924, there was a previous partition by an indenture duly registered. The plaintiff''s case now is that this partition deed was fraudulent and he asks that it may be set aside and a fresh partition made of all the joint family properties. The first amendment to the plaint for which he asks is that the defendants should be directed to furnish a list of the entire ancestral joint property. I cannot see any objection to this prayer except the general ground which the learned Subordinate Judge takes, namely, that none of the prayers are bona fide.

The third amendment is similar to the first and it asks that defendant 1 be directed to file in Court a complete list of the properties in the gola and a receiver be appointed to look after the business of the gola. It is a fact that defendant 1 is in possession of the gola which is described in the deed of partition as being the separate property of this defendant. The application to appoint a receiver in respect of it cannot be entertained, but I see no reason why defendant 1 should not be required to disclose the property that is in it and which he claims to be his separate property. The case of the plaintiff is that the property in that gola is joint family property. It seems to me that the defendant is bound to make discovery.

The learned Subordinate Judge thinks that a list of the ancestral joint property, both movable and immovable, was made long ago at the time of the partition deed and that it is merely for the purpose of harassment that the plaintiff now asks for another list. As the plaintiff attacks, the partition deed as fraudulent and claims that not only is it wrong in its details, but that properties which belonged to the joint family have been omitted from it altogether, I think he is entitled to ask for a fresh list.

With regard to the second prayer, namely, that defendant 1 who is in possession of the properties should he directed to submit in Court an account and bujharat of the income and expenditure since 1957 sambat: the objection taken by the learned Subordinate Judge is that the addition of this prayer will alter the nature of the suit. I do not think so.

A member of a joint family, in asking for an account in a partition suit, cannot object to the various items of past expenditure by the karta, but he can call for an account for the purpose of ascertaining how much was saved each year out of the income in order that, it may be at the disposal of the joint family for partition. I think, therefore, that the prayer should be allowed.

The learned vakil for the opposite-party suggests that the plaintiff, instead of making the amendments in the plaint that has been filed, should file a fresh plaint with fresh Court-fee. There is no-object in subjecting him to this extra expenditure, but what the plaintiff will have to do is to pay the necessary Court fees, when the proper time comes, upon the prayer to set aside the partition-deed as well as upon the prayer for accounts. He must give an estimate of the amount at which he values the relief for account and pay whatever Court-fee is legally payable thereon.

The application is allowed with costs. Hearing fee: three gold mohurs.