JUDGMENT The judgment of the Court was as follows :–– The suit is a partition suit amongst the heirs of one Gunendra Nath Mitter who died in 1926. He was a rich Bangalee resident of North Calcutta and so far as the relevant shares in the suit are concerned, he was survived by his five sons who were Aditendra Nath Mitter, Anitendra Nath Mitter, Ajitendra Nath Mitter, Asitendra Nath Mitter and Abanindra Nath Mitter. The names I have given are in descending order of their age. Aditendra Nath Mitter was the eldets brother and Abanindra Nath Mitter was the youngest of the five brothers. 2. The issues were raised by the first defendant. Those issues were 5 in number and are set out below :–– 1. Is the premises No. 84B, Muktaram Babu Street, Calcutta including the Thakur Dalan the abode of family Deity Shree Shree Radhamadhab Jew and as such not partible as pleaded in paragraph 2 and 15 of the Written Statement of the Original Defendant No. 1 ? 2. Are the defendant Nos. 1A, 1B and 1C entitled to a decree for partition of the immovable properties mentioned in paragraph 15 of the written statement of the Original defendant No. 1 ? 3. Was the original defendant No. 1 deprived of his right claim in the joint family properties by reason of his mental illness as alleged in his written statement ? 4. Are the defendant Nos. 1A, 1B and 1C entitled to a decree for proper accounts as against heirs of the original plaintiff since deceased and defendant No. 2 as well as against the heirs of the original defendant Nos. 3 and 4 in respect of the transactions mentioned in paragraphs 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 27A, 27B, 27C, 27D and 31 of the written statement filed by the defendant No. 1 since deceased with all accretion thereto and decree for such sums as may be found due and payable with interest in accordance with the share of the defendant Nos. 1A, 1B and 1C ? 5. To what reliefs, if any, are the parties entitled ? 3. 1A, 1B and 1C ? 5. To what reliefs, if any, are the parties entitled ? 3. In the matter of dedication or debutter, which is what the first set of defendants set out to establish, even though the same was not clearly pleaded in the written statement of Abanindra, they had no material at all which could given them any reasonable hope of success even from the commencement. In the matter of dedication of property to a deity or creation of an enforceable charge or interest in favour of a deity in relation of immovable property, four questions always have to be answered. These would be, who dedicated the property, how the property was dedicated, when the property was dedicated, and lastly what property was dedicated. If we take the first of these questions s to who dedicated the property, the answer to this in the instant case would have to be that all the five brothers dedicated the property, i.e. 84B, Muktaram Babu Street to Radha Madhav Jew. There is no deed of dedication to that effect. I accept the submissions of Mr. Goho, who appeared for the first set of defendants, that in accordance with law of religious and charitable trust in India, a deed of dedication is not a must, but that the parties can dedicate validly by their acts and conduct alone. Yet, that conduct would have to be clearly spelt out, and proved at trial. 4. Mr. Goho submitted that the five sons dedicated 84B, Muktaram Babu Street by merely standing by. The authorities re quite clear that though dedication for religious or charitable purposes can be effected without solemn or registered deed, yet the once regarding proof of such dedication is heavy. The retionale of this rule is easy to understand. After all, by reason of dedication, ownership is changed; the dedicator loses right, title and interest to deal with the property subsequently in the manner be chooses. Yet, in the records and title deeds which are registered, he continues to be owner. Unless the facts relating to user of the property are so manifest as to make it clear to the world at large that the property has been dedicated, the path would be paved to perpetration of property frauds. Yet, in the records and title deeds which are registered, he continues to be owner. Unless the facts relating to user of the property are so manifest as to make it clear to the world at large that the property has been dedicated, the path would be paved to perpetration of property frauds. A person who is the recorded owner might well defeat his creditors by setting up a deity and saying that by conduct he has already effected a dedication. That is not to be; the user of the property must be manifest. Any person taking the slightest of trouble to visit the property or examine it must see it with his own eyes that the property has been kept apart for the religious and charitable use and that there has been a change in user which is not consistent with private ownership of property. 5. Nobody visiting Muktram Babu Street would have any doubt that this family dwelling house or any part of it has been changed into dedicated property. There is evidence in the suit about user of this building. There are kitchens, some of which are lying unused on the ground floor. Ashim Mitter himself carries on a stockist’s business in the property and makes an annual turn over or over a crore of rupees. Parties live there, or have lived there in the post and have now locked up their rooms. A priest comes to worship the deities in the room where they are located. 6. These re not indications of any manifest user of the property for Debsheba. Radha Madhav Jew is there in the property just s the Shalgram Sila is there and the deity Ganesh is there and amongst themselves they perhaps would not occupy more than 6 feet of ground in one room on the first floor. This is not dedication by fact. I would go so far as to say that calling this dedication by fact is trying to succeed in a case which had even not the beginning of any possible ultimate success. 7. It would, in my opinion, be enough to pronounce the case in regard to the deity to be unsubstantial even on the basis of the factual user of the property. Even if parties by documents seek to create a debutter, the same is not enough. 7. It would, in my opinion, be enough to pronounce the case in regard to the deity to be unsubstantial even on the basis of the factual user of the property. Even if parties by documents seek to create a debutter, the same is not enough. This is one instance where an otherwise good and valid executed deed and a duly registered deed would fail to divest one of ownership. A person cannot dedicate effectively merely by executing and registering a deed of trust. Subsequent conduct by way of which the said person back up his bonafide intention of dedication is also indispensable. Just as a deed is not essential or necessary for dedication of property so also is a deed by itself not sufficient unto that purpose. 8. The rationale for the rule is again simple to understand. Unless the piece of property has been used for religious or charitable purpose, a deed of dedication even though registered might be utilised for improper purposes. Say for example, a person has registered a dedicating deed but has actually used his property thereafter as his own. He might well be able to induct tenants there. It would be improper to permit the paper beneficiary of the religious or charitable deed to claim ownership as against the lessee, as the user of the property has been utterly inconsistent with the tenor of the dedication deed. 9. As such, even if there are documents relating to creation of some interest in favour of the deity regarding 84B, Muktaram Babu Stree, yet this document would be insufficient for making out a case of dedication or debutter or even the lesser case of creation of some interest in favour of the deity. 10. Before I pass on to certain other documents which are relevant in the matter of determination of this issue of dedication, I clear this up that Anup Mitter, one of the Substituted defendants in place of the original third defendant made submissions through his counsel Mr. Jaideep Gupta lasting for about 5/6 minutes, to this effect that the Thakur Ghar alone is impartible. During the course of the progress of the suit, this stand of Anup Mitter, was not specifically taken. That the Thakur Ghar was according to him separate from the premises themselves, was not indicated previously at all. Jaideep Gupta lasting for about 5/6 minutes, to this effect that the Thakur Ghar alone is impartible. During the course of the progress of the suit, this stand of Anup Mitter, was not specifically taken. That the Thakur Ghar was according to him separate from the premises themselves, was not indicated previously at all. Anup Mitter did not attempt to establish the difference in status of the solitary Thakur Ghar either by calling any evidence of his own or by cross-examining (friendly or otherwise) the two witnesses who came to the box or even by tendering any separate documents on his behalf. 11. The effect of declaring one room only in a whole house to be impartible would in effect affect the partibility of the entire house. If one room cannot be demolished then neither can a large part of the house which contains or supports that room. If one room cannot be partitioned then the entire land upon which the house rests and to which the house is a fixure would itself, at in part, partake of the character of impartibility. To put it figuratively, a single impartible room in a big house would act exactly like a thorn in the flesh. 12. Mr. Jaideep Gupta relied on the case of (1) Madan Mohan Shaha, reported in Indian Law Reports, Volume 57 (1930) Calcutta, page 570 (Madanmohan Shaha Banik v. Rakhalchandra Shaha Banik) and placed the passage contained in pages 576-578. In that passage, it is stated that a Thakur Bari is not capable of partition. That Thakur Bari in that case was found to be a place of worship. The case in my opinion is completely distinguishable on this fact that there was a whole house or a Thakur Bari which was found to have been used for religious purposes and that those purposes would be defeated by partition. There is no such exclusive user which is ascertainable to regard to the room in which the three deities are placed. I would go so far as to say that the point urged by way of a last minute argument on the part of Anup Mitter is a point taken by him in a speculative way intended for obstructing the course of partition and is not a bonafide attempt on his part to substantiate a case of dedication which he wants on its merits to succeed. It is a type of legal point which is often taken to put the other party into difficulty. If the Thakur Ghar is dedicated for religious purpose then is it dedicated to Radha Madhav Jew or to the Shalgram Sila or to the deity Ganesh ? This question was not even thought by Anup Mitter to be at all relevant in the matter of urging of the point that the Thakur Ghar alone in the whole house is separately dedicated. 13. No other case apart from the above has been cited on his behalf for substantiating the extremely odd proposition that without a deed and without any ceremony of dedication one room alone in the whole house became dedicated. As I have already indicted such a decision to hold the Thakur Ghar of a house to be dedicated property would render a large percentage of the affluent Indian homes to be dedicated in part as there is hardly one such house which does not contain a room where some deity is located or where some worship is regularly performed. 14. The conclusion on the above facts, therefore, is that it is unascertainable as to when any part of the aforesaid residential house became dedicated. There is no evidence of any dedication at any particular point of time. It is also not ascertainable as to who effected the dedication. None of the five sons of Gunendra Nath Mitter effected any dedication but that they merely added the letters A and B to the premises for paper work before the Wealth Tax Authorities and the Corporation authorities. Accordingly no answers to the questions as to how or is what manner the property was dedicated can be found. Lastly there being No. 84B, Muktaram Babu Street in ascertainable existence there is no property about which any point as to dedication can arise. 15. Mr. Goho relied upon the two cases of (2) M. D. Reddy and Sri Govind Lalji reported respectively in AIR 1957 SC 797 , AIR 1963 SC 1638 . He placed paragraph 5 from the first judgment and paragraph 68 from the second judgment. In my opinion he correctly submitted from these authorities that a deed is not necessarily needed for the purpose of establishing a religious dedication. 16. He placed paragraph 5 from the first judgment and paragraph 68 from the second judgment. In my opinion he correctly submitted from these authorities that a deed is not necessarily needed for the purpose of establishing a religious dedication. 16. He also relied on certain other authorities for the purpose of his submission that there need not necessarily be any acceptance in regard to the gift to an idol, in that the idol, not being sentient is incapable of according such consent. In my opinion, it is not necessary to refer to these authorities as, upon the facts in this case these points of law do not at all arise. 17. Mr. Pratap Chatterjee appeared for the substituted plaintiffs. The claims made on the part of Mr. Goho’s client were resisted practically single handed by him appearing for the plaintiffs now on record. Though there were several other appearances on the part of other parties to this suit yet the contest, as between counsel and counsel was between Mr. Goho and Mr. Chatterjee. 18. Mr. Chatterjee during his submission on the first issue relied upon a case reported in (3) 55 CLJ page 26 (Shri Shri Iswar Lakshmi Janardan) and referred me to a passage at page 31. In my opinion, he correctly submitted on the basis thereof that a registered deed is insufficient for the purpose of establishing a dedication and that the subsequent conduct of parties is all important. He was quite right in his submission and he was quite right in emphasizing the same because the conduct of parties for the past 50 years has been shown to be thoroughly inconsistent with a case of dedication of the property. 19. Mr. Chatterjee next relied upon the 5 Edition of Dr. Mukherjea’s Book on Religious and Charitable Trusts and referred me to paragraphs 3.7, 4.9, 4.20 and 4.21 respectively at pages 107, 157 and 470 of that book. He submitted that according to this authority a heavy onus rests upon a person seeking to establish a religious trust. Such heavy onus is naturally even more difficult to discharge in the absence of any document of dedication though such a document is not an absolute necessity. No doubt a registered document would always help in proof. It was also submitted that the mere establishment of deity is not creation of Debutter. Such heavy onus is naturally even more difficult to discharge in the absence of any document of dedication though such a document is not an absolute necessity. No doubt a registered document would always help in proof. It was also submitted that the mere establishment of deity is not creation of Debutter. This is important as this principle aptly distinguishes the facts in this suit from the case relied upon by Mr. Jaideep Gupta wherein the whole Thakurbari was dedicated for Debseva. Any mere installation in a Thakur Ghar is utterly different from the dedication of a whole house or Bari and whereas the former would not suffice to prove dedication the latter might well indicate the intention to dedicate. 20. On the basis of Dr. Mukherjee’s authority it was lastly submitted by Mr. Chatterjee that the principal test is to see whether the owner or owners intended to divest themselves of property right in respect of the dedicated land. If the five brothers had been told that a substantial portion of 84, Muktaram Babu Street has gone away from the till of joint property the facts in this case indicate that in that event all and each of them should have been duly shocked. Radha Madhab Jew never filed any return regarding any tax declaring 84B s the property of Radha Madhab Jew. The corporation rtes in respect of 84B, Muktaram Babu Street were all along paid from joint funds. The questions of Aswini Pal No. 301, 302 and 421 might be referred to in this regard. Page 7 of book regarding accounts of joint property No. 91, Harrison Rod being Ext. II shows against an entry dated June, 1970 that Corporation tax for 84B was paid from the funds accruing from the joint property. Radha Madhab Jew was therefore there only on paper and had nothing to do with the property as such. 21. Mr. Chatterjee also relied upon the case of (4) Ramji v. Manohar, (5) Durgabala Biswas v. Nityananda Roy and (6) Venode Kumar Jalan v. Calcutta Municipal Corporation & Ors. reported respectively in AIR 1961 Bombay page 169, 59 CWN page 367 and 1987 Vol. I page 333 Calcutta Law Times for the proposition that Corporation records or any incorporation therein is sufficient for the purpose of effecting any change in title. This proposition is a true proposition of law and I accept the same. reported respectively in AIR 1961 Bombay page 169, 59 CWN page 367 and 1987 Vol. I page 333 Calcutta Law Times for the proposition that Corporation records or any incorporation therein is sufficient for the purpose of effecting any change in title. This proposition is a true proposition of law and I accept the same. Corporation records might show conduct of parties and intention of parties and the way parties intended to deal with their property. As such the rate bill coming in the name of a deity in respect of the property of five owner brothers would be, though no evidence as to title, yet some evidence as to conduct or intention. But so slight and inadequate is the value of this little bit of evidence of obtaining separate corporation rate bills in the name of shebait of Radha Madhab Jew, though paying the same from joint funds, that, on the basis thereof, the case of Debutter could not ever be said to have either taken off the ground, or even have started rolling on the runway for the purpose of an ultimate take off. 22. Issue No. 11 is accordingly answered to this effect that the entire premises 84A and 84B, Muktaram Babu Street comprise family dwelling house in which the family deity Shri Shri Radha Madhab Jew has no interest whatsoever and which is as partible amongst the parties to this suit as any other of the immovable joint property in suit, which are admittedly so partible. 23. Issue No. 2 is relevant only with regard to the property at Brojodham, Deoghr. 24. Issues 3 and 4 are related and must be taken up together. If half the days of hearing were spent on the issue of dedication of the family dwelling house then the other half was spent on the issue of the alleged deprivation of Abanindra Nath Mitter. The case of Abani, as the issues themselves indicate, is that he was not as well or as sound in health of mind or body as his other four brothers and accordingly he was deprived of joint family income. Because of such deprivation he has claimed for accounts. 25. The case of Abani, as the issues themselves indicate, is that he was not as well or as sound in health of mind or body as his other four brothers and accordingly he was deprived of joint family income. Because of such deprivation he has claimed for accounts. 25. In case it appears that Abanindra Nath Mitter was sufficiently sound in mind and body to understand his own affairs and to take action which he thought to be in the best interest for himself then a case for accounts would be hopelessly bared by limitation in 1984 unless the deprivation had taken place sometime after the year 1981 or, if article 110 of the Limitation Act applies as was contended by Mr. Goho, Abani had come to know of his deprivation for the first time after 1972. The state of Abani’s mind and body is therefore relevant. 26. It is just s well to mention at this stage that an endorsement on the written statement of Abanindra Nath Mitter made on the 26th March, 1984 records that no counter claim or set off is asked for. The recording was made presumably because Abanindra Nath Mitter did not wish to pay any Court fees for pursuit of his counter claims indicated in the written statement. No prayer for payment of Court fees or extension of time therefor has been made before me either. How can a person who abandons his claim or set off made in the written statement be permitted, or his heirs be permitted, to agitate the same and try to press the point home in a hearing continuing for an appreciable length of time from day to day ? In my opinion this is most improper. Naturally the counter claim or disputes of Abani could not be dismissed on such a short preliminary or technical point in view of the magnitude of the suit or the points sought to be raised by evidence and arguments. The first set of defendants chose to disclose documents which covered 5 bound Judge’s briefs each running to approximately 1000 pages or so. The first set of defendants chose to disclose documents which covered 5 bound Judge’s briefs each running to approximately 1000 pages or so. A counter claim sought to be pressed in this way cannot be dismissed in limine on the basis of a single endorsement on the written statement but when the suit does not come to a termination, and the said endorsement is seen not to be detracted from in any manner by any of the documents, evidence or argument made by counsel, seeking to press the written statement, then than endorsement assumes an importance which is not to be underestimated. All counterclaim of Abani would also fall in my opinion on this single ground alone. 27. Aswani paul, the well conversant accountant of the family has said in questions 687 to 697 that Abanindra Nath Mitter was an assessee under the Income Tax Act and that he locked after the income tax matters. He has said that shares were allotted in 1950 in the name of five brothers. In question 693 he has categorically greed with a suggestion that if documents and records were disclosed and produced the same would not go to support the case of the group of Abanindra Nath Mitter but that those books would damage the same. It passes my comprehension how any case could survive such an answer from an Accountant who knew the affairs of everybody and who was also obviously a witness upon whom the group of Abani relied for favourable answers to be given on their behalf. I do not think that in assessing whether a witness is a friendly witness to one particular side or not it is very material to enquire whether he was giving evidence pursuant to a subpoena or otherwise. It is much safer to assess the side that he is on by judging the witness from his answers and demeanour from the box then to make any mechanical assessment on the basis whether he has come simply on being called by one side to give evidence or whether he has been formally served with a subpoena for deposing before Court. 28. On the basis of the above discussion, I have no hesitation in coming to the conclusion that there was no deprivation of Abanindra Nath Mitter caused by reason of his alleged mental illness or incapacity of any type. 28. On the basis of the above discussion, I have no hesitation in coming to the conclusion that there was no deprivation of Abanindra Nath Mitter caused by reason of his alleged mental illness or incapacity of any type. I shall later on be going on to demonstrate that no case of deprivation at all has been made out but that must come under issue No. 4. Suffice it for the present to say that issue No. 3 must be answered against the first set of defendants and it must be held that Abani did not suffer in any manner because of any alleged incapacity of his in relation to his participation in the fruits of the joint family property. 29. This brings us to the point of limitation, i.e. Article 110 of the Limitation Act of 1963; the article runs as follows :–– 110. By a person excluded from Twelve when the exclusion a joint family property years. becomes known to to enforce a right to the plaintiff. share therein. 30. There is some dispute about when, even according to the group of the first defendants, the matter of deprivation become known to Abani. Ahim has said in answer to questions 127, 435 and 924 that the matters became known to Abani in 1979. In a letter of 1973 which is, Exhibit-P Abani complains in the same manner practically as he complains in 1983 of his discovering deprivation by reason of his coming across several papers. I would easily go so far as to say that Ex-P (1973) and Ex-17 (1983) are so identical in ideas, that both are thoroughly unreliable as being impossible repetitions of the same events at a gap of no fewer than ten years. 31. Mr. Pratap Chatterjee said that in any event Article 110 would have no application to Dayabhaga property. He relied in this regard upon the Division Bench Judgment in the case of (7) Hangseswar Liake reported in ILR 1951 Volume II Calcutta pge-168 and referred me to the passage at page-171. In that passage Article 127 of the old Limitation Act is referred to which is identical to the new Article 110. It was said that in a Mitakshara family the shares are fluctuating and as such Article 127 might be applicable. In that passage Article 127 of the old Limitation Act is referred to which is identical to the new Article 110. It was said that in a Mitakshara family the shares are fluctuating and as such Article 127 might be applicable. However, in a Dayabhaga family where the shares are not fluctuating like in a Mitakshara family the proper article to apply would be the old Article 120 which is the residuary Article for suits where no period of limitation is otherwise prescribed. The period of limitation under the Article 120 was six years. Under the new residuary Article for suits in the 1963 Act the period is three years given against Article 113. In this view of the matter the counter claim of Abani made in 1984 would be barred if he came to know of his alleged deprivation in 1979 as stated by Ahim from the box or if he discovered the matters in 1973 which is the inference to be made from his letter written in that year being Exhibit-P. I do not believe the case of Abani’s discovery of documents in 1983. He filed the complaint after Aditendra’s death in July’ 83, whereas if his case of discovery were true, he would have complained then and there in June 1983. The complaint was triggered rather by the death of Aditendra than by any discovery by Abani in June 1983, no specific date in that long month being mentioned by him. 32. The aforesaid Division Bench Judgment is binding upon me and I follow the same. Therefore, I come to the conclusion that Abani’s counter claim being made in respect of a Dayabhaga family was clearly barred by limitation. The explanation of this difference in the periods of limitation for the two different schools of law is that when exclusion takes place in a Mitakshara family it might be less easy for the person deprived to discover the said deprivation that it might be in a Dayabhaga family. That is why the benefit of the larger period of limitation is given to a Mitakshara member; and for the same reason the period of limitation is said to start not from the date of deprivation but from the date of knowledge of the person deprived. 33. Mr. That is why the benefit of the larger period of limitation is given to a Mitakshara member; and for the same reason the period of limitation is said to start not from the date of deprivation but from the date of knowledge of the person deprived. 33. Mr. Chatterjee also submitted that Article 110 would again be inapplicable because the joint family had already disrupted, and therefore though the property continued to be joint, yet the property lost the status of joint family property. Mr. Chatterjee has said that Asitendra Nath Mitter has gone away to live at 7B, Mandeville Garden. He further said that according to Ahim’s own evidence there were separate kitchen on the ground floor indicating separation of the joint family. And Mr. Chatterjee further said that the filing of a suit immediately leads to disruption of joint family and that the 1955 suit filed by Abani had led to such disruption of joint family status. Mr. Chatterjee relied upon the case of (8) Girzabai reported in 43 Indian Appeals page 151 and referred me to the passage at page 160. He said on the basis of this passage that if a co-sharer on his individual decision desires to separate from the joint family property then, though he disrupts the joint status, yet the actual partition of the property might have to await further events. 34. The evidence on record now shows that practically all the branches have left the joint family dwelling house at 84, Muktaram Babu Street. One branch had gone to Salt Lake. The only person who is the most interested in going on living at 84, Muktaram Babu Street is Ahim Mitter. 35. There is nothing, therefore, to hold that there is any jointness in mess, and there is nothing left of jointness of family property after the filing of the 1955 suit. The property remains joint but not joint family property. 36. To highlight the difference between joint property and joint family property Mr. Chatterjee referred to the decision of the judicial committee in the case of (9) Govind Rao reported in 35 CWN 438. He referred to a concluding passage at page 444. He said, in my opinion correctly, on the basis thereof, that immovable joint property merely by reason of the same continuing to be undivided is not necessarily joint family property. Chatterjee referred to the decision of the judicial committee in the case of (9) Govind Rao reported in 35 CWN 438. He referred to a concluding passage at page 444. He said, in my opinion correctly, on the basis thereof, that immovable joint property merely by reason of the same continuing to be undivided is not necessarily joint family property. If the name is not joint family property the present article 110 of the Limitation Act would naturally not apply. 37. Incidentally, the earliest, partition decree on record amongst the five brothers is of 1943 (Dt. 2.6.43) and is Ex-15, a copy also being item 1 of Ex-A. The parties never wanted to continue in joint family even though they might have lived together many years. Even in 1943 the property, though remaining joint, had lost the nature of joint family property. The hurdle of limitation is thus insurmountable. 38. The next point raised with regard to Abani’s counter-claim was that the counter-claim as to accounts is barred by res judicata. 39. Apart from the 1955 suit there was another suit in 1968 which had been instituted by Ajitendra Nath Mitter. All the brothers were parties therein. The decree in the suit is to be founded at page 50 ext-A series. It is recorded there that the suit was a suit for accounts since the death of the father of the five brothers. It is also recorded by way of consent that no party shall have any claim for accounts, damages or otherwise or any account whatsoever regarding the subject-matter of the suit. It is arguable that the claim for accounts was altogether extinguished by the said consent clause and that the consent clause is not limited only to the matters mentioned in the plaint in that suit. However, an examination of the claims actually made in that suit which would appear from page 92 at ext-A series would show that the accounts were claimed in respect of joint assets being shares, cash monies, bank monies, investments and compensation monies. Under these circumstances even if the consent clause is taken as limited to the claim in the suit the parties must be taken to have extinguished claims against one and other in regard to the accounts relating to all of the items mentioned above. 40. Under these circumstances even if the consent clause is taken as limited to the claim in the suit the parties must be taken to have extinguished claims against one and other in regard to the accounts relating to all of the items mentioned above. 40. It is true that for a settlement beyond the scope of the suit a comprehensive jurisdiction has been given by the 1976 amendment to the Code of Civil Procedure. However the Calcutta view was that such jurisdiction was possessed by the Court even under the unamended provisions of the Code. However the Calcutta view was that such jurisdiction was possessed by the Court even under the unamended provisions of the Code. For substantiating this proposition of law Mr. Chatterjee relied upon the judgment in the case of (10) Andhra Association reported in 1977 Calcutta High Court Notes page 114/117. On the basis of this view even if it is held that the consent clause travelled beyond the accounts actually in issue between the parties (which, in my opinion, it did not), even then the parties would be bound by the consent decree in the suit of 1968 not to raise any further question of accounts against one and other. 41. The suit of 1955 does not expressly mention about accounts. However, in my opinion, it is not permissible for the parties to go in for a partition of joint family property without raising the question of accounts relating to the joint family property either then held by them as jointly or previously held by them as joint family property. It would go against the provisions demanding that the entire claim of the plaintiff against the defendant should be raised in one suit and the claim should not be unnecessarily split up into several suits. No leave was obtained in respect of the 1955 suit under order 2 rule 2. The parties should have, but did not raise any question of accounts against one and the other, in case they were dissatisfied in any manner in that regard. Abani was significantly the plaintiff in that suit. He said nothing about accounts. He accepted the consent decree of 1955. He has not challenged it either in this proceeding or any other proceeding. Abani was significantly the plaintiff in that suit. He said nothing about accounts. He accepted the consent decree of 1955. He has not challenged it either in this proceeding or any other proceeding. Abani was thus barred by the principles of res judicata or the principles of constructive res judicata form raising any question of accounts in relation to the joint family property. 42. The issue No. 4 relates to actual deprivation from joint family property and income. 43. Issue No. 4 is accordingly answered against the first set of defendants and it is unhesitatingly held by me that there should be no accounts directed in favour of the defendant Nos. 1(a), 1(b) and 1(c) in respect of any of the joint family property or money. 44. I accordingly decree the suit in the manner following : There shall be a preliminary decree for partition of the property mentioned below in accordance with the declared shares in the manner following amongst the parties to this suit. 45. The parties shall pay and bear the expenses before the Commissioner of Partition and the subsequent expenses after today in accordance with their shares. As already said, there shall be a preliminary decree for partition in the manner stated above. However, the costs and expenses until today for all the parties excepting defendant No. 3(b) Anup Mitter must be borne by defendants Nos. 1A, 1B, 1C and 1D and they shall accordingly pay the costs of all other parties excepting the costs of Anup Mitter until today, including of course the costs of the many days hearing before me. The suit would not have gone on at all, had it not been for the pressing of wholly untenable disputes by the first set of defendants. Anup Mitter shall pay and bear his own costs until date.