JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. G.N. Sahewalla, learned Senior Counsel assisted by Ms. Section Senapati, learned Counsel for the appellant. Also heard Mr. A.K. Bannerjee, learned Senior Counsel assisted by Ms. P. Chakraborty, learned Counsel for the Respondent No. 1, Mr. B. K. Goswami, learned senior counsel assisted by Mrs. T. Goswami, learned Counsel for Respondent No. 2, Mr. C.K. Sarma Baruah, learned Senior Counsel assisted by Ms. A. Dey, learned Counsel for Respondents No. 3 and 15 and also heard Mr. A.K. Goswami, learned Senior Counsel assisted by Ms. B. Sharma, learned Counsel for the Respondents Nos. 4, 6 and 8. 2. This First Appeal has been directed against the judgment and decree dated 24.12.01 passed by the learned Civil Judge (Sr. Divn.), No. 1, Cachar, Silchar in Title Suit No. 23/87 on being preferred by the defendant No. 7/appellant (hereinafter referred to as 'the appellant') against the plaintiffs Nos. 1 and 2/respondents (hereinafter referred to as 'the respondent Nos. 1 and 2') who instituted the Title Suit being T.S. No. 23/87 seeking for declaration of right, title and interest to the extent of 7/20 share of the movable and immovable properties described fully in Schedules to the plaint including business in 3(three) Cinema Houses, cash money in gold and silver mortgage business and Banking accounts etc. and for a preliminary decree fixing the extent of the entire joint family properties of the plaintiffs and of the Defandant Nos. 1 to 15 and their predecessors in cinema business, gold and silver mortgage business and in other businesses from the year 1970 and onwards after the death of Kanailal Lala, the husband of the plaintiff/respondent No. 2 and the court be pleased to take over the management and administration of the said properties and the plaintiffs/respondent Nos. 1 and 2 be awarded monthly maintenance according to their respective share in the properties, or the mense profits to which they are entitled according to the extent of their share after accounting and for partition of their entire divisible joint family properties, cash amount and other moveable and Immovable properties and for preparation of an allotment of properties according to plaintiffs/respondents share in all such joint family properties and deliver possession of such allotment in moveable and Immovable properties falling in such allotments. 3. 3. The facts that are necessary and important for resolution of the basic issues raised in the instant appeal may be narrated. The predecessors-in-interest of the appellant and the respondent Nos. 1 and 2 were Late Kisoon Lal Lala and Late Bisoon Lal Lala, who were uterine brothers and sons of Late Behari Lal Lala. The genealogy of the Lala family deserves mentioning herein as below : BEHARI LAL LALA _________________________________|______________________________ | | K. Soon Lal Lala (died 1943) (Bisoon Lal Lala (died 1954) Wife – Kalabati Devi - No issue Wife - Parbati Devi (died in 1963) | | | | ________|__________________________________________________________________ |__________ | | | | | | | Harilal Lal Lala (died 14.7.44) Mohan Lal Lala Ram Dayal Lala Kanailal Lala (died | | Wife –Ahalya Lala (died 2.12.78 (died in 1.7.73) on 16.12.69) | | (Plaintiff No.1/Respondent No.1) as Bachelor) No Isssue Wife-Bhanumati Devi | | | (Plaintiff No. 2) | | __________|__________________ | (Respondent No. 2) | | | | | | | | Sushila (Df. Anila Devi (Df. 12) Maya Lala | | No. 10) Died 1997 (Df. 11) Girija Devi Lala (Df. 13) | | Df. 12(1) to 12 (6) (died 2003) | | ______________________________________________________________________ | | | | | | | | | | | | Wife Sabitri Motilal Monoj Dipak Rina Lala Bina Lala Monoj Monoj | | Lala, Lala Lala Lala Lala Lala | | Df. 1 (died (Df. 2) (DfJ 3) (Df 4) (Df 6) (Df 7) (Df 3) (Df 3) | | in 1999) | | Wife - Anita Lala (Appellant) | Nanki Devi (Df. 15) (Defendant No.7) (died 1971) | _________________________________ | | | | | | Santa Ram Durga Tulsi Basanti Rajen Bania (Df. 14) (died in 94) Prasad Died 4. Kisoon Lal Lala died in 1943 leaving four sons, namely, (i) Harihar Lal Lala who died on 14.7.44, the husband of the plaintiff/respondent No. 1, (ii) Mohanlal Lala who died on 2.12.78, the father of the appellant, (iii) Ram Dayal Lala who died bachelor on 1.7.73, (iv) Kanai Lal Lala who died issue-less on 16.12.69 leaving behind him his wife, the plaintiff/respondent No. 2 and two daughters, namely, (a) Nanki Devi (died on 1971, the mother of defendant No. 14) and (b) Girija Devi Lala, the defendant No. 13 who died in 2003. 5. The claim of the plaintiffs/respondents Nos. 5. The claim of the plaintiffs/respondents Nos. 1 and 2 was that the properties both moveable and Immovable in question described in the Schedules basically were joint family properties and they, being the members of the Hindu undivided family, were entitled to get their respective share of 7/20 in entire both moveable and Immovable properties. 6. According to the respondents Nos. 1 and 2, both Late Kisoon Lal Lala and Late Bisoon Lal Lala settled at Central Road, Silchar Town since their father's time about one hundreds year back by adopting the laws of the land including customs in the matters of marriage, succession etc. and were in joint mess and properties. Late Bisoon Lal Lala acquired special skill in gutting Tennis and Badminton rackets and started business in sports goods and opened Cachar Sports Works at Central Road, Silchar dealing in sports goods for Golf, Polo, Tennis etc. That was closed down after independence when British Planters left Cachar. Besides that, in the initial stage, the two brothers carried on business of Penny Carts and money lending business against security of gold and silver ornaments and lumps. Both the two brothers earned enormous fortune. Late Bisoon Lal Lala was pioneer in motor transport business in the Cachar District. In 1921/1922 Bisoon Lal Lala became 1st Motor Car and Motor Bus Owner in Cachar District. The two brothers amassed properties in cash and kind while living in joint mess and properties. Money lending business against security of gold and silver started by them still exists. 7. Bisoon Lal Lala died issueless in the year 1954 leaving behind his widow Smt. Parvati Devi who also died in 1963. 8. Late Harihar Lal Lala being the eldest son joined the business of his father and uncle and assisted Bisoon Lal Lala. A plot of land at Central Road was taken on lease and a grocery shop was opened, but closed down later on. Harihar Lal Lala took initiative in Cinema Business and started a Cinema Hall styled as Kalabati Cinema Hall at Silchar in the year 1939-40 constructed over their homestead land at Central Road, Silchar. Bisoon Lal Lala arranged machineries and equipments from Sukhamoy Sinha, Ambikapatty, Silchar, on hire basis. 9. Kalabati Devi was wife of Kisoon Lal Lala predeceased her husband Kisoon Lal Lala who died in 1943. Bisoon Lal Lala arranged machineries and equipments from Sukhamoy Sinha, Ambikapatty, Silchar, on hire basis. 9. Kalabati Devi was wife of Kisoon Lal Lala predeceased her husband Kisoon Lal Lala who died in 1943. In 1943, Harihar Lal Lala, in consultation with his uncle Bisoon Lal Lala purchased requisite engine, machinery and other equipments. By that time Mohan Lal Lala, Ram Dayal Lala and Kanai Lal Lala joined the joint family business and Kanai Lal Lala took up the management of said cinema business. Licence of Kalabati Cinema Hall was obtained in his name. Kanai Lal Lala died in 1969. Licence of the Cinema Hall was subsequently transferred to plaintiff/Respondent No. 2, Smti. Bhanumati Lala, wife of Late Kanai Lal Lala in 1981. 10. The family of Kisoon Lal Lala with his sons and daughters lived in joint mess and property with Bisoon Lal Lala and his wife Parvati Devi and they by their joint effort developed business and acquired common interest. Bisoon Lal Lala, after death of Harihar Lala, engaged Mohan Lal Lala in looking after and assisting him in family business as he was surviving eldest son of the family. The daughters of Late Kisoon Lal Lala, i.e. Defendant No. 13 and the mother of defendant No. 14 were given in marriage before 1935. Mohan Lal Lala was mostly engaged to look after sports goods business, money lending business and pony cart business started by Late Bisoon Lal Lala. Kisoon Lal Lala died in the year 1943. 11. Late Bisoon Lal Lala established Annapurna temple, a famous temple on the bank of river Barak, at Silchar, with deity of 'Mother Annapurna' still being revered by the people. The idol was brought by Bisoon Lal Lala. The land of the temple was the property of Lalajoint family and was described in Schedule-1 to the plaint. The structure of the temple was described under Schedule-1 (A). The Deities of the temple were provided with valuable ornaments of gold and silver described under Schedule-1 (B). Valuable furnitures were described under Section 1(C). Item Nos. 5 to 8 of the said Schedule were in use of the deities and properties described under item Nos. 1 to 4 remained in custody of plaintiff/respondent No. 1 for use during ceremonies and festivals. 12. Valuable furnitures were described under Section 1(C). Item Nos. 5 to 8 of the said Schedule were in use of the deities and properties described under item Nos. 1 to 4 remained in custody of plaintiff/respondent No. 1 for use during ceremonies and festivals. 12. Both Late Kisoon Lal Lala and Late Bisoon Lal Lala lived in their homestead at Central Road, Silchar Town on verbal agreement with the predecessor of defendant Nos. 19 to 25 who were landlords residing at village Mashi junder, Karimganj District. Subsequently, on 16.2.1942 both the brothers took settlement of said land from their landlord by executing a bilateral deed of lease. The present house on said land were constructed at the time of Bisoon Lal Lala and Kisoon Lal Lala from the income of their joint family business. Subsequently, remaining brothers namely Mohan Lal Lala, Ram Dayal Lala and Kanai Lal Lala, purchased Maliki right over said homestead land by a Kabala dated 6.1.1965 from said landlords. The homestead land and house standing thereon were described under Schedule-II and Schedule-II(A). Mohan Lala Lala and his two brothers jointly purchased 6 kathas of land from said landlords described in Schedule-Ill while living in joint mess and properties and from the income of their aforesaid business. 13. Late Bisoon Lal Lala made negotiations for purchase of properties of Messrs. Gitashree Cinema at Central Road, Silchar and accordingly Mohan Lal Lala was deputed by Bisoon Lal Lala, as he was the eldest son, to Calcutta for the purpose. Subsequently, the properties were purchased in consideration and a document was executed on 31.3.1953 by the partners of Messrs. Gitashree Cinema in favour of Mohan Lal Lala. The entire machinery, furniture, fittings and fixtures were purchased on that occasion and common fund of the joint family was spent for the purpose. Thereafter the name of the Cinema House was changed to Annapurna Talkies after Bisoon Lal Lala renovated the building of said Cinema House which was rented house. Mohan Lal Lala as eldest son took up a unagement of the cinema business assisted by his younger brothers. Requisite licence was obtained in his name. Bisoon Lal Lala opened the Cinema House inviting respectable persons of the town and soon thereafter he died. The machinery, furniture, fixtures and equipments still exist and were described in Schedule-IV. The three brothers made the Cinema business a profitable business. Requisite licence was obtained in his name. Bisoon Lal Lala opened the Cinema House inviting respectable persons of the town and soon thereafter he died. The machinery, furniture, fixtures and equipments still exist and were described in Schedule-IV. The three brothers made the Cinema business a profitable business. The licence of the CinemaHall still now remained in the name of Mohan Lal Lala though he died in 1978. 14. Mohan Lal Lala, in consultation with his younger brothers and for the purpose of extension of Cinema business and in the capacity as Karta of the family purchased lease right of land described in Schedule-V of the plaint with house thereon described in Schedule-V(A) to the plaint and machinery, furniture, fixtures and equipments described in Schedule-V(B) to the plaint from one Shanti Lal Sengupta and others who were owners in possession by Kabala dated 17.5.1957. Ram Dayal Lala was the In-charge of this Cinema at Hailakandi carried out in the house under the name and style Biswanath Talkies. He died bachelor on 1.7.1973. 15. Mohan Lal Lala took over management of Kalabati Talkies after death of Kanai Lal Lala, husband of plaintiff No. 2, on 16.12.1969. He was also managing the original business of money lending against security of gold and silver since the day of Bisoon Lal Lala and Kisoon Lal Lala. Mohan Lal Lala, who was Karta of the family, was in the control and supervision of entire business of the family after the death of Bisoon Lal Lala. In money lending business no receipt was issued to the borrowers against gold and silver ornaments and lumps deposited as security. Signature of the borrower was obtained on a paper wherein description of times deposited were written. The items were preserved in a packet against a serial number. A register of accounts is maintained. All necessary particulars were entered into Gold Control Ordinance was promulgated by Union Government in 1961 and enactment was made and it became necessary for Mohan Lal Lala to obtain a licence from appropriate authority for carrying on said business. He had to make to some declarations. The licence was so obtained from Assistant Collector, Land Customs and Central Excise, Silchar. Gold and Silver ornaments in custody were declared by Mohan Lal Lala in the interest of family. The licence of said business still remained in the name of Mohan Lal Lala on renewal. He had to make to some declarations. The licence was so obtained from Assistant Collector, Land Customs and Central Excise, Silchar. Gold and Silver ornaments in custody were declared by Mohan Lal Lala in the interest of family. The licence of said business still remained in the name of Mohan Lal Lala on renewal. Mohan Lal Lala and his brother Ram Dayal Lala disposed of huge quantity of gold and silver ornaments immediately after the promulgation of the ordinance. The gold and silver ornaments received in course of business were kept in custody of Mohan Lal Lala along with registers and accounts of money lending business. 16. The heirs of Upendra Mohan Roy, the lessee of land and owner of houses of Annapurna Talkies entered into a contract of sale of said properties with Mohan Lal Lala who paid Rs. 40,000/- as advance out of consideration money of Rs. 60,000/- in 1967. As the vendors did not execute sale deed, defendant Nos. 1 to 9 as heirs of Mohan Lal Lala filed T.S. No. 76 of 1977 in the court of the Assistant District Judge, No. 1, Cachar. The suit was decreed ex-parte. Kabala was executed byway of deposit of balance consideration money in court. Common Fund of the family was utilized for purchase of the properties. Mohan Lal Lai? before this purchase, purchased land described in Schedule VH to the plaint by utilizing joint family fund. Mohan Lal Lala endeavoured to construct a modem Cinema House. The building materials collected were described in Schedule-II(C). Huge amount was expended from the family fund. Mohan Lal Lala and Ram Dayal Lala purchased another plot of land described in Schedule-VII on 22.3.1970 from joint family fund in custody of Mohan Lal Lala. But it came to the notice of the plaintiffs/respondent Nos. 1 and 2 in June, 1982 that Mohan Lal Lala along with defendant No. 13, Girija Devi Lala sold away said land ignoring the title and interest of the plaintiffs/respondents Nos. 1 and 2 in the land. Defendant Nos. 16 to 18 were in possession of said land knowing it well that the plaintiffs/respondents Nos. 1 and 2 and other co-sharers had ejmali interest therein. 17. 1 and 2 in the land. Defendant Nos. 16 to 18 were in possession of said land knowing it well that the plaintiffs/respondents Nos. 1 and 2 and other co-sharers had ejmali interest therein. 17. Smti Parvati Devi, widow of late Bisoon Lal Lala died in 1963 after she became absolute owner of 112 of the properties of joint family acquired by her husband and Kisoon Lal Lala and also properties acquired after his death. Mohan Lal Lala developed an attitude to deprive the plaintiffs/respondents Nos. 1 and 2 from their legitimate interest in the properties owned and possessed by joint family members taking the advantage of the situation that Harihar Lal Lala had no male issue except his three daughters, namely, Sushila (defendant No. 10), Anila Devi (Defendant No. 12) and Maya Lala (Defendant No. 11) and Kanai Lal Lala being issueless. 18. The properties described in the Schedules to the plaint were joint family properties acquired during the life time of Kisoon Lal Lala and Bisoon Lal Lala and subsequently from the income of said acquired properties, Kanai Lal Lala, the youngest of the four brothers married in 1964 and died in 16.12.1969 leaving behind his widow, plaintiff respondent No. 2 who was the sole heir of the interest of her husband in the properties. Plaintiff No. 2, Bhanumati Lala continued to live in the joint family. After the death of Bhanumati Lala's husband, Mohan Lal Lala and his sons and daughters and his wife began to misbehave with plaintiff No. 2. But so long Ram Dayal Lala was alive he protested. Subsequently the messing of the family was separated. The plaintiffs with daughters of plaintiff No. 1 came into one messing and defendant Nos. 1 to 9 and Mohan Lal Lala into the another messing within same homestead. 19. The maintenance of the family members was borne from income of joint family business. 20. Ram Dayal Lala died in 1973. After his death it became difficult for plaintiff No. 2 to live in the family. She was often subjected to torture and humiliation. Under the circumstances she left for her father's house on 2.12.1978. 21. Mohan Lal Lala met with sudden death on said date after her departure. After the death of Mohan Lal Lala his heirs are defendant Nos. 1 to 9 became more aggressive and humiliated plaintiff No. 1 and her daughter. She was often subjected to torture and humiliation. Under the circumstances she left for her father's house on 2.12.1978. 21. Mohan Lal Lala met with sudden death on said date after her departure. After the death of Mohan Lal Lala his heirs are defendant Nos. 1 to 9 became more aggressive and humiliated plaintiff No. 1 and her daughter. One of the daughter died as a result of such torture. 22. Moti Lal Lala, defendant No. 2 came in the control of entire family properties after the death of his father Mohan Lal Lala. He initially continued to pay maintenance as was done by Mohan Lal Lala from family fund. But later on he stopped it. On 18.2.1980 some of the defendant Nos. 1 to 9 assaulted plaintiff/respondent No. 1 and her daughters. Police registered a case and proceeded. Subsequently the complaint was withdrawn on assurance of defendant Nos. 3 and 4 not to ill-treat plaintiff/respondent No. 1 and her daughter. Defendant Nos. 1 to 4 in the meantime drove away the sons of defendant No. 13 though they had right over joint family properties Defendant No. 14 was also implicated in false case by Mohan Lal Lala and got him arrested by police. 23. Attempts were made since the days of Mohan Lal Lala to remove them from joint family business in order to grab the entire property. 24. Defendant No. 2 married defendant No. 15 who hailed from a Brahmin family. The marriage was inter-caste marriage. Defendant No. 2 and other defendants misappropriated huge amount of money from joint family fund. Defendant No. 2 with some ulterior motive purchased the properties described in Schedule-XII in the name of defendant No. 15. Defendant No. 2 also constructed one Cinema House at police pool by utilizing the fund of the joint family. In fact none of defendant Nos. 2,3 and 4 had any source of independent income. The Cinema house at Poila Pool and the properties of the Cinema house were described in Schedule-XIII. 25. It came to the knowledge of the plaintiffs/respondent Nos. 1 and 2 that false tax returns were submitted by Mohan Lal Lala manipulating the accounts of joint family business and showing the interest of the plaintiffs/respondent Nos. 1 and 2 therein. The Cinema house at Poila Pool and the properties of the Cinema house were described in Schedule-XIII. 25. It came to the knowledge of the plaintiffs/respondent Nos. 1 and 2 that false tax returns were submitted by Mohan Lal Lala manipulating the accounts of joint family business and showing the interest of the plaintiffs/respondent Nos. 1 and 2 therein. Mohan Lal Lala convinced Kanai Lal Lala and Ram Dayal Lala to form a partnership business among themselves for convenience of joint family business, particularly to lessen payable amount of income tax. Various matters were concealed and untrue declaration were given for creation of partnership. This partnership of three brothers was not acted upon and was used for the purpose of income tax only. The facts came to the knowledge of the plaintiffs/respondent Nos. 1 and 2 after the death of Mohan Lal Lala. The plaintiffs/respondent Nos. 1 and 2 were kept in dark while submitting such returns. Subsequently it came to the notice of the plaintiffs that the signature of plaintiffs/respondent No. 2 had been forged. The returns submitted to Sales Tax Authority regarding sale of tickets differed from the statements submitted to various distributors. M/s. Madhu Sudan Films (O) Ltd. Guwahati was the broker. Defendant No. 2 spent huge amount for comfort and luxury. Defendant No. 2 also purchased the Motor Car and Revolver mentioned in Schedule-H (D) which were the properties of the joint family. Defendant Nos. 1 to 9 also purchased luxurious items including Motor Car, Refrigerator, Cameras from common fund. Those were described in Schedule-II (D). Defendants were earning from different Bharatias, from market complex, and from Motor Transport Station under the style Network Travels opened by them. The income from these sources and the persons who were earning as such are described in Schedule-XIV to the plaint. 26. As already noted, Kisoon Lal Lala died in 1943 leaving behind four sons and two daughters and as such four sons got 1/8th share in the entire property. Harihar Lal died in 1944 and the life estate so long held by his widow plaintiff/respondent No. 1 became absolute after Hindu Succession Act, 1956 came into force in 1956. Kanai Lal Lala inherited 1/4th share in the properties of his father and as such plaintiff/respondent No. 2 inherited said share in absolute interest. Smti. Harihar Lal died in 1944 and the life estate so long held by his widow plaintiff/respondent No. 1 became absolute after Hindu Succession Act, 1956 came into force in 1956. Kanai Lal Lala inherited 1/4th share in the properties of his father and as such plaintiff/respondent No. 2 inherited said share in absolute interest. Smti. Parvati Devi, wife of Bisoon Lal Lala died issueless in 1963 and as such her 1/2 share in the joint family properties was inherited by the heirs of her husband i.e. (1) Mohan Lal Lala, (2) Ram Dayal Lala, (3) Kanail Lal Lala, (4) Smti. Girija Devi and (5) Smti. Nanki Devi. Each of them got 1/10h share. Ram Dayal Lala had interest to the extent of 9/40th share. That share was inherited by Mohan Lal Lala and Smti. GirijaDevi by 1/10h share. Nanki Devi died in 1971. Under the circumstances plaintiff/respondent No. 1 got 1/8th share and plaintiff/respondent No. 2 got 9/40th share in the properties. 27. Defendant Nos. 2 to 4 being the male members in the family were maintaining the affairs of the family business and they were appropriating all incomes along with defendant No. 1, their mother and Defendant No. 5 to 9 depriving the plaintiffs/respondent Nos. 1and 2. Defendant Nos. 1 to 9 were misappropriating properties including cash arid ornaments which were in their custody. So the plaintiffs/respondent Nos. 1 and 2 asked the Defendant Nos. 1 to 9 to get the joint family properties separated. 28. The plaintiffs/respondent Nos. 1 and 2 could come to know that the Defendant Nos. 2 to 4 constituted fake partnership firm under the name and style of M/s. Lala Brothers and also submitted returns suppressing the interest of the plaintiffs/respondent Nos. 1 and 2 in the joint family properties. 29. Petitions for partition were submitted before Collector, Cachar and P.P. cases were registered for partition of revenue paying estates. Those cases were disposed of refusing partition on the ground that the names of the plaintiffs/respondent Nos. 1 and 2 did not appear in the pattas. 30. The plaintiffs/respondent Nos. 1 and 2, therefore, prayed for declaration of their right, title and interest to the extent of 7/20th share of the me cable and Immovable properties, for preliminary decree for fixing extents of share of plaintiffs and defendant Nos. 1 and 2 did not appear in the pattas. 30. The plaintiffs/respondent Nos. 1 and 2, therefore, prayed for declaration of their right, title and interest to the extent of 7/20th share of the me cable and Immovable properties, for preliminary decree for fixing extents of share of plaintiffs and defendant Nos. 1 to 14 and their predecessors in the business, for accounting in respect of family business with effect from 1970, for mesne profit and for partition of entire divisible joint family properties, preparation of allotments and delivery of possession accordingly. 31. The suit was contested by Defendant No. 1, being the wife of Late Mohan Lal Lala along with Defendant Nos. 3, 4, 6, 7, 8 and 9 by filing written statement denying, mteralia that there was all along nucleus of joint family business, that Kisoon Lal Lala and Bisoon Lal Lala were uterine brothers, that they were predecessors-in-interest of the plaintiffs, that they resided at Central Road, Silchar, in joint mess and properties, that they adopted law of land and changed custom, and that they carried out money lending business against security of gold and silver and pony cart business. The above answering defendants had also denied that Harihar Lal Lala joined business of father and established Kalabati Cinema, the licence for which was subsequently transferred from him to Bhanumati Lala, that Mohan Lal Lala entered into joint family business in 1940-41, that Mohan Lal Lala purchased land as Kartai of the family, that he with Ram Dayal Lala started Biswanath Talkies at Hailakandi, that licence of Gitashree Cinema was still in his name though he died in 1978, and that Mohan Lal Lala took advantage of situation to deprive plaintiffs/respondent Nos. 1 and 2 as Harihar Lal Lala and Kanai Lala had no male issues. 32. Misbehaviour with plaintiff/respondent No. 2 by Mohan Lal Lala, his sons, daughters and wife after death of Kanai Lal Lala, torture to her by heirs of Mohan Lal Lala after his death, submission of false Income Tax return, entering into partnership business for the purpose of joint family business, and particularly for paying lesser amount of Income Tax, right of the plaintiffs/respondent Nos. 1 and 2 to the extent of 7/20th share in the properties mentioned in the schedules to the plaint were all denied by the above answering defendants. 1 and 2 to the extent of 7/20th share in the properties mentioned in the schedules to the plaint were all denied by the above answering defendants. It clearly appeared that the above answering defendants had specifically denied all the allegations made in the plaint. 33. The answering defendants had asserted that Lala family was and still is guided by Mitakshara School of Hindu Law and they never accepted Dayabhaga School. Some of the assertions made in the written statement were as follows: 34. Gold and silver mortgage business was imaginary. Kalabati Cinema was never ajoint family business. Mohan Lal Lala was the owner. Bisoon Lal Lala was never engaged in money lending business. Mohan Lal Lala was in sole charge of Gitashree Cinema subsequently known as Annapurna Talkies on personal capacity. Gold business was self acquired. He declared actual state of affairs before appropriate authority after Gold Control Act came into force. Further assertions were that he purchased maliki right of land and house of Annapurna Talkies from his own fund, that the brothers were separated long before, that plaintiff/respondent No. 2 left Silchar permanently long before, that the joint family business was imaginary, and partnership, M/s. Lala Brother was legally valid, and that there could not be any partition as there was no nucleus of joint family. 35. The case of the above mentioned answering defendants was that Mohan Lal Lala by dint of his own toil and dedication in business acquired some properties and subsequently established Kalabati Talkies at Silchar. He made profit and, thereafter, took a lease of Gitashree Cinema Hall at Silchar from his own income. He also purchased Cinema Hall at Hailakandi known as Biswanath Talkies. Licence of Gitashree Cinema was in his name. The said Hall was later on, renamed as Annapurna Talkies. After the death of Mohan Lal Lala during his life time acquired all the properties described in the Schedules to the plaint except the properties acquired in the name of defendant No. 15. 36. Santa Ram Punjali, son of defendant No. 13 Girija Devi was reared up and facilities for education was provided by Mohan Lal Lala. But he tried to grab properties whereupon he was driven out. Santa Ram, out of grudge and enmity against the answering defendants managed to file the suit by the plaintiffs/respondent Nos. 1 and 2 fabricating and manipulating papers. But he tried to grab properties whereupon he was driven out. Santa Ram, out of grudge and enmity against the answering defendants managed to file the suit by the plaintiffs/respondent Nos. 1 and 2 fabricating and manipulating papers. Santa Ram had the intention to grab property. 37. The above answering defendants had prayed for dismissal of the suit. 38. On the other hand Defendant No. 2, another son of Late Mohan Lal Lala along with his wife, Defendant No. 15, jointly filed written statement separately specifically denying all the allegations like the above set of defendants, made in the plaint. According to their written statement, defendant Nos. 10 to 40 had been unnecessarily made parties. The above defendants had asserted that Bisoon Lal Lala and Kisoon Lal Lala came to Silchar more than 100 years ago, changed their custom of marriage, succession etc. and adopted the law of the land and as such there could not be any presumption of joint family under Mitakshara School of Hindu Law. Each of the brothers earned of his own. Bisoon Lal Lala died in 1954. Harihar Lala died in 1944. So it was a false statement that Harihar Lal Lala did business with Bisoon Lal Lala. The above defendants had stated that the properties mentioned in the Schedules were not joint family properties. The properties described in Schedule Nos. II to VIII to the plaint were the properties of defendant Nos. 2, 3 and 4. Properties described in Schedule-XII was personal property of defendant No. 15. Properties described in Schedule-XIII to the plaint were the properties of Ganesh Chetri and there was no property in the name of answering defendants as described under the Schedules-1, IX, X and XI. It had further been stated in the written statement that the three Cinema Halls were partnership business of defendant Nos. 1 to 4. Defendant Nos. 3 and 4 turned away defendant Nos. 2 and 15 from their residence. Defendant Nos. 3 and 4 filed T.S. No. 52 of 1981 in the Court of Assistant District Judge No. 1, against defendant Nos. 2 for accounts. This said suit was pending and according to the above defendants the instant suit could not proceed. The heirs of Mohan Lal Lala filed Execution Case No. T. Ex. Defendant Nos. 3 and 4 filed T.S. No. 52 of 1981 in the Court of Assistant District Judge No. 1, against defendant Nos. 2 for accounts. This said suit was pending and according to the above defendants the instant suit could not proceed. The heirs of Mohan Lal Lala filed Execution Case No. T. Ex. 11/80 to get possession of land relating to Annapuma Talkies for execution of decree obtained in TS No. 36/79 filed by Mohan Lal Lala and it was resisted by some encroachers. The plaintiffs filed the present suit at the instigation of said encroachers. Under the circumstances, the above defendants had prayed for dismissal of the suit. 39. The trial court after going through the pleadings of the parties framed as many as 10 (ten) issues including one Additional Issue. Those Issues read as follows : 1. Is there are any cause of action for the suit? 2. Is the suit properly valued? 3. Are the suit properties properly described? 4. [(Recasted) on 18.9.01] Whether the suit is bad for non-joinder and mis-joinder of necessary parties? 5. Is the suit maintainable in its present form specially in view of the adoption of customary law by Bisoon Lala and Kisoon Lala? 6. Is the property of Annapuma Talkies was purchased by Mohan Lala in T.S. 36/79? 7. Is the property of Schedule No. XII personal property of defendant No. 15 and property of Schedule-XIII belongs to Ganesh Chetri and others? (recasted on 5.10.2000) 8. Has the plaintiffs right, title and interest in the suit property, if so, to what extent? 9. To what relief or reliefs, is the plaintiff entitled? 10. (Addl. Issue framed on 8.9.2000). Whether the suit property is joint property of the plaintiff and the principal defendants or exclusively owned by the defendants predecessor Mohan Lala or a partnership property of defendant Nos. 2 to 4 and if so, whether partition is barred under Indian Partition Act? 40. The learned trial Judge, having considered the submissions and arguments put forward on behalf of the parties on the basis of issues mentioned herein above, accepted the contentions made on behalf of the plaintiffs/respondent Nos. 1 and 2 and held that the properties in question were the joint family properties to which the respondent Nos. 1 and 2 were entitled to the extent of respective shares and decreed the suit accordingly. 41. 1 and 2 and held that the properties in question were the joint family properties to which the respondent Nos. 1 and 2 were entitled to the extent of respective shares and decreed the suit accordingly. 41. Be it pertinent to mention herein that although the defendant Nos. 1, 3, 4, 6, 7, 8 and 9 filed their written statement, in fact, they did not appear at the time of hearing despite notice and refrained themselves from adducing any evidence whatsoever in support of their case and eventually the case was con tested by defendant No. 2 and his wife, defendant No. 15. However, later on, as it ap pears from the records, this defendant No. 2 preferred an appeal against the impugned judgment and decree by filing a separate Regular First Appeal being R.F. A. No. 59/02 before this Court but withdrew the same on 27.6.03 on the ground of amicable settlement of the matter arrived at between the parties on compromise by filing a miscellaneous case being Misc. Case No. 599/03 in R.F.A. No. 59/02. 42. That being the position, this present appeal has been filed by defendant No. 7, the appellant, who is one of the daughter of Mohan Lal Lala, who died on 2.12.78. 43. Basically three fundamental Issues have been raised herein and these are (i) whether the parties herein, being Hindus, are governed by Dayabhaga School or Mitakshara School under Hindu Law?, (ii) whether the properties in question are the joint family properties? and (iii) whether the deity can be a subject matter of partition? 44. The learned Counsel for both the parties primarily have centered around their arguments to Issue Nos. 5, 7 and 10 as indicate above. 45. The basic thrust of Mr. Sahewalla, learned Senior Counsel appearing for the appellant is that admittedly, although both the appellant and the respondent Nos. 1 and 2 are from the Hindu undivided and joint family, they are not governed by the local law, i.e. Dayabhaga School but they belong to Mitakshara School of Hindu Law. More so, the plaintiffs/respondent Nos. 1 and 2 are not members of the joint family properties and they are, therefore, not entitled to get any respective share whatsoever in the said properties and hence decreeing the suit in favour of the plaintiffs/respondent Nos. 1 and 2 is absolutely illegal, bad in law and inoperative against the appellant. More so, the plaintiffs/respondent Nos. 1 and 2 are not members of the joint family properties and they are, therefore, not entitled to get any respective share whatsoever in the said properties and hence decreeing the suit in favour of the plaintiffs/respondent Nos. 1 and 2 is absolutely illegal, bad in law and inoperative against the appellant. His case is that the entire properties in question, at no point of time, were joint family property, rather the properties of the appellant, BinaLala, share of which has been claimed, was the properties coming from the self acquired property of her father Mohan Lal Lala. Moreover there was a partnership firm under the name and style of Lala Brothers constituted by her brothers, namely Motilal Lala, Monoj Lala and Deepak Lala, the defendant Nos. 2,3 and 4 in the related suit respectively and by the strength of the Partnership Deed they are having a separate business independent of joint family properties. According to the learned Counsel, since the property is not a joint family property, the plaintiffs/respondents No. 1 & 2 are not at all entitled to have their shares as decreed by the trial court. It is further contended that the deity, the share in which had also been decreed by the trial court, cannot be subject matter of partition. A deity is always open for worship by the public. 46. In support of the impugned Judgment and Decree, Mr. B.K. Goswami appearing on behalf of plaintiff/respondent No. 2, Bhanumati Lala, has submitted that from the plain reading of the plaint itself it would apparently go to prove that the will and intention of the predecessors of the parties involved in this appeal and related title suit, by way of their admitted assimilation and adoption of the law of land, would definitely indicate that they are absolutely governed by Dayabhaga School of Hindu Law and as such it is a clear case that both the appellant and the Respondent No. 2 are the members of Hindu joint family under the Dayabhaga School and they are not governed by Mitakshara School as claimed and reflected in the written statement filed by Defendant Nos. 1, 3, 4, 6, 8 and 9 including Defendant No. 7, the appellant herein. 1, 3, 4, 6, 8 and 9 including Defendant No. 7, the appellant herein. It is also strongly contended by the learned Senior Counsel that though those defendants had filed written statement, they including the appellant herself blissfully preferred not to contest the suit. In support of his submission, Mr. Goswami has relied on the findings given by the trial court against the Issue No. 7 and Issue No. 10 which were taken up jointly for determination by the court below as well as Issue No. 5 wherein the learned trial Judge exclusively and comprehensively, in dealing with the entire factual situation, had arrived at the findings that the parties were governed by law of the land and they were, accordingly, entitled to get their respective shares from the properties which were also held to be the joint family properties of Lala family. According to Mr. Goswami, the learned Judge, keeping the local law, i.e. Dayabhaga School in view, although the same was not specifically mentioned in the findings arrived at in the impugned judgment, rightly and correctly decreed the suit allowing the entitlement of their respective share of the plaintiffs/respondent Nos. 1 and 2 in the joint family properties. It is authoritatively argued by the learned Senior Counsel that had Mitakshara School of Hindu Law been applied in the instant case as pleaded on behalf of the defendants in the title suit, the appellant would not have got a single property in her share. 47. Mr. C.K. Sharma Baruah, learned Senior Counsel representing the respondent Nos. 3 and 15 has fairly submitted that although the appeal, being R.F.A. No. 59/2002 preferred by the respondents No. 3 being the defendant No. 2 in the suit who only along with his wife, the defendant/respondent No. 15 contested the suit, has been withdrawn later on the plea of amicable settlement between the parties, he would like to place his submission on the record as his clients have been arrayed in this appeal as party respondent Nos. 3 and 15. His limited contention is that the litigant parties are governed by Dayabhaga Schools and he has no grievance against the findings so arrived at by the trial court in deciding all the 10 (ten) Issues including the Additional Issue and his clients fully agree with the allotment of shares so held by the trial court. 48. At this stage, Mr. His limited contention is that the litigant parties are governed by Dayabhaga Schools and he has no grievance against the findings so arrived at by the trial court in deciding all the 10 (ten) Issues including the Additional Issue and his clients fully agree with the allotment of shares so held by the trial court. 48. At this stage, Mr. Bannerjee, learned Senior Counsel appearing for the Ahalya Lala, Respondent No. 1, refuting the submission of Mr. Sahewalla, has contended that admittedly, although the idol and deity cannot be a subject matter of partition, in the case in hand, it is not the deity which is the subject matter of partition but only its offerings which could be certainly partitioned. In support of his submission, he has relied on the decision of the Apex Court reported in [1979] 3 SCR 209 (Badri Nath and Anr. v. Mst. Punna (dead) by Lrs. and Ors.) wherein it was clearly held that offerings which had been made to deity could be a subject matter of partition and in the instant case Schedule (1)(A) and (1)(B) appended to the plaint would clearly indicate that offerings like, golden necklace, pair of chor made of gold, golden mukut, mukut of Salagram Sila, silver umbrella, silver mukut, silver Dambaru and silver Trishul have been made subject matter of partition and accordingly no error in law as well as on facts has been committed by the trial court in allowing the partition of its offerings described fully in Schedule (1)(A) and (1)(B) to the plaint. 49. Mr. A.K. Goswami, the learned Senior Counsel representing the Respondent Nos. 4,6 and 8, adopting the arguments of Mr. Sahewalla, the learned Senior Counsel appearing on behalf of the appellant, has contended that the Respondent No. 4 along with Respondent Nos. 2 and 3 formed a Partnership Firm know as M/s. Lala Brothers by dint of their own effort investing therein their self acquired properties therein and as such the Respondent Nos. 1 and 2 had no share whatsoever in the properties so possessed and enjoyed by them not being the part of joint family property. 50. We have given our thoughtful consideration to the extensive submissions and arguments canvassed on behalf of the respective parties in this appeal. We have also carefully gone through the entire facts situation projected in the pleadings both in the plaint and written statement. 50. We have given our thoughtful consideration to the extensive submissions and arguments canvassed on behalf of the respective parties in this appeal. We have also carefully gone through the entire facts situation projected in the pleadings both in the plaint and written statement. We have also meticulously scanned the deposition of PW 1 (Debesh Prasad Bhattacharjee), PW 2 (Santa Ram Lala), PW 3 (Sudhir Chakraborty), PW 4 (SurendraNarayan Sukur), PW 5 (Ranjan Mazumdar), PW 6 (Ranjit Kr. Das), PW 7 (Rupendra Mohan Das), PW 8 (Dipu Chutia) so produced by the plaintiffs/respondent Nos. 1 and 2 to prove that the properties in question are the joint family properties. 51. On the other hand, the defendants/respondent Nos. 3 & 15 (Motilal Lala and his wife Anima Lala respectively) who have been arrayed in this appeal as Respondent Nos. 3 and 15, contested the suit while other defendants except filing the written statement did not adduce any evidence to support their case made out in the written statement and examined two witnesses, namely, defendant Nos. 1 (Motilal Lala, himself) and DW 2 (Maya Lala) defendant No. 11 in the title suit. The testimony of these witnesses have also been scrupulously scrutinized by us. 52. It is noticed from the evidence of DW 2, Maya Lala that this witness categorically deposed that two brothers, namely, Kisoon Lal Lala and Bisoon Lal Lala who came with their father in the childhood accepted the customs and traditions of the place. She also stated in her cross that Partnership Deeds so mentioned were executed for evading Income Tax and for driving out her mother Ahalya Lala, Respondent No. 1 herein and her aunty Bhanumati Lala, Respondent No. 2 and her another aunty namely, defendant No. 13 (Girija Devi) and defendant No. 14, Ranjan Bania from the property. 53. It also transpires that save and except the averments and contentions made in paragraph 16 of the written statement to the effect that Lala family was still guided by Mitakshara School of Hindu Law and they had not accepted Dayabhaga School of Hindu Law in the matter of customs and traditions, no evidence has been produced or proved in support of such statement by any of the defendants excluding defendant Nos. 2 and 15 i.e. Respondent Nos. 3 and 15 herein. 54. 2 and 15 i.e. Respondent Nos. 3 and 15 herein. 54. In order to resolve whether the parties herein are governed by Dayabhaga School or Mitakshara School, it would be pertinent to look into the textual concept of Hindu Law pertaining to Dayabhaga School and Mitakshara School. The Dayabhaga School which also popularly known as Ben gal School has its absolute domination in Assam and Bengal and thereby it is only the Dayabhaga School that is applicable in Assam and Bengal while Mitakshara School prevails in the rest of India. 55. According to Mitakshara School, the son acquires at his birth an equal interest with his father that of the ancestral property held by his father and inheritance is by survivorship. 56. Under Dayabhaga School, the son does not acquire any interest by birth in the ancestral property. His rights arises for the first time on the father's death. On the death of the father he takes such property as left by his father whether separate or ancestral as heir and inheritance is not by survivorship; 57. Partition is an another branch of Hindu law on which there is some radical differences between die two principal Schools. However, under both Mitakshara and Dayabhaga, descent is from a common ancestor. According to the true notion of a Mitakshara family, no individual member of that family, whilst it remains undivided, can predicate of the joint property, that he (that particular member) has a certain definite share, one-third or one-fourth Partition, according to that law, consists in ascertaining and defining the shares of the coparceners; in other words, it consists in a numerical division of the property by which the proportion of each coparcener in the property is fixed. 58. According to Dayabhaga Law, on the other hand, each coparcener has, even whilst the family remains undivided, a definite share in the joint property of which he is the absolute owner. The property is held in defined shares, though the possession is the joint possession of the whole family. Partition, according to that law, consists in separating the shares of the coparceners, and assigning to the coparceners specific portions of the property. 59. As under Mitakshara Law, so under Dayabhaga Law, the true test of a partition lies in the intention of the parties to separate. Partition, according to that law, consists in separating the shares of the coparceners, and assigning to the coparceners specific portions of the property. 59. As under Mitakshara Law, so under Dayabhaga Law, the true test of a partition lies in the intention of the parties to separate. In the case of a joint Mitakshara family, that intention maybe manifested by a mere agreement between the coparceners to hold and enjoy the property in defined shares as separate owners without an actual division of the property by metes and bounds. In the case, however, of a joint Dayabhaga family, such an agreement as aforesaid, is not a sufficient manifestation of the intention to separate; for according to Dayabhaga Law, the joint property is held, even while the family remains joint, in defined and specific share. To constitute a partition according to Dayabhaga Law, there nust be something more than such an agreement. There must be a separation of the shares, and the assignment to each coparcener of specific portions of the joint property. 60. Under Dayabhaga Law, every adult coparcener, male or female, is entitled to enforce a partition of the coparcenary property. (See Mulla Hindu Law, Nineteenth Edition, Vol. 1 by S.A. Desai, pages- 639-640). 61. Now the question is whether the parties in the instant appeal are governed by Dayabhaga School of Hindu Law. While residing in Assam, as it is admittedly disclosed in evidence on record that the predecessors-in-interest of the parties in the instant case migrated from somewhere from outside Assam and Bengal, the predecessors accepted the local law. The general rule is that where a Hindu family migrates from one State to another, the presumption is that it carries with it its personal law, i.e. the laws of customs as to succession and family relations prevailing in the State from which it came. However, this presumption may be rebutted by showing that the family has adopted the law and usage of the province to which it has migrated. However, this presumption may be rebutted by showing that the family has adopted the law and usage of the province to which it has migrated. If a Hindu family migrates from an another province and/or State, where Mitakshara Law prevails, to Bengal and Assam where Dayabhaga Law prevails as stated above, the presumption is that it continues to be governed by Mitakshara Law, and such presumption may be supported by previous instances of succession in the family according to Mitakshara Law after its migration and by evidence relating to ceremonies performed in the family at marriages, births and shraddhs, showing that the family continued to be governed by Mitakshara Law after its migration. It has not happened in the instant case. Lala family migrated from outside to Silchar in the State of Assam and from the evidence adduced by Respondents Nos. 1 and 2, they have proved that they adopted the laws and customs of the land, i.e. Assam wherein Dayabhaga Law prevails predominantly. On the other hand, the claim of the defendants including the appellant that they are governed by Mitakshara Law, as contended in the written statement, had at no point of time been proved by evidence to show that by the practice and performance of their customs and ceremonies they still continue to be governed by Mitakshara Law while residing at Silchar in the State of Assam. 62. In view of the above discussion as well as textual Hindu Law prescribed for inheritance, we are of the considered view that the Parties herein are governed by Dayabhaga School being inhabitants of Assam for last more than a century by way of assimilation and adoption of local customs, usage and law of the land. Since there was no such evidence on record save and except statement made in the written statement that parties were governed by Mitakshara School, we have no hesitation to hold that the appellant along with all other defendants in the suit are not governed by Mitakshara School. 63. Having gone carefully through the evidence on record including the facts and circumstances in its entirety as narrated in the plaint and also manifestly reflected in the judgment in paragraphs 3 to 38 which were not reverted by any of the defendants by evidence save and except Respondent Nos. 3 and 15 (defendant Nos. 63. Having gone carefully through the evidence on record including the facts and circumstances in its entirety as narrated in the plaint and also manifestly reflected in the judgment in paragraphs 3 to 38 which were not reverted by any of the defendants by evidence save and except Respondent Nos. 3 and 15 (defendant Nos. 2 and 15 respectively) who also later on have settled the matter amicably and withdrew the related appeal being F.R. A. No. 59/02 so preferred by them against the Judgment and Decree dated 24.12.01 under challenge, we find that the entire properties in question are the joint family properties to which the appellant/respondent Nos. 1 and 2 being the members of the Hindu joint family under Dayabhaga Law, are entitled to get their respective shares. Moreover, having regard to Badri Nath's case (supra) and taking into account the offerings mentioned in Schedules 1(A) and 1 (B) to the plaint, it is held that the offerings that have been placed before the deity can be partitioned but not the Deity. 64. That being so, having made a close survey on allotment of shares to the respective parties made by the trial court while decreeing the suit in favour of the plaintiffs/respondent Nos. 1 and 2, we can safely hold that the trial court by a well reasoned Judgment and Decree properly and adequately took care of almost all the issues so framed by him. Be it noted that although Issue No. 5 as quoted above is not correctly framed, we are otherwise in full agreement with the findings arrived at by the trial court in decreeing the suit and the same deserves no interference of this Court. 65. In view of what has been discussed, observed and stated above, we are of the view that there is no cogent or plausible ground set out to dislodge the views expressed and findings recorded by the trial court. 66. Consequently, we are of the view that the present appeal is bereft of any merit and the same stands dismissed and we do hereby confirm and affirm the impugned Judgment and Decree dated 24.12.2001 passed by the learned Civil Judge (Sr. Division) No. 1 Cachar, Silchar, in Title Suit No. 23/87. 67. In the result, this First Appeal fails and stands dismissed. 68. Send down the LCR forthwith. Appeal dismissed.