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2009 DIGILAW 659 (CAL)

Kiriti Mohan Mondal v. Sulekha Mondal

2009-08-25

BHASKAR BHATTACHARYA, PRASENJIT MANDAL

body2009
Judgment : PRASENJIT MANDAL, J. (1) This first appeal is directed against the judgment and decree dated May 20, 1988, passed by the learned Assistant District Judge, First Court, Kalna in Title Suit No.85 of 1983 thereby decreeing the suit in part on contest in the preliminary form with declaration of share of the plaintiff/respondent to the extent of 4 annas in the suit properties mentioned in schedule ka to the plaint. The case made out in the plaint, in short, is that suit properties as described in the schedule to the plaint originally belonged to the father-in-law of the plaintiff, namely, Panchanan Mandal (since deceased). Out of the suit properties, some of those were acquired in the names of the defendant nos.4 to 6. Late Panchanan Mandal died in 1347 B.S. leaving behind the husband of the plaintiff, namely Anadi Prasad (since deceased) and his three other sons i.e., defendant nos.1 to 3 and 3 daughters. The 4 sons acquired 4 annas share each after the death of Panchanan Mandal. Thereafter, Anadi Prasad died leaving behind his wife, i.e. plaintiff and one daughter (since deceased) in 1351 B.S. The plaintiff got life interest in respect of the estate left by her husband and after introduction of the Hindu Succession Act, she became the absolute owner of her husbands estate. The suit properties left by Panchanan Mandal were never partitioned. Late Anadi Mandal (since deceased) was the karta of the joint family. After his death, his next brother, namely Kiriti, became the karta of the joint family and he purchased some properties in the name of his 2 sons and the wife out of the income of the joint family and his 2 sons and wife have been made parties as defendant nos.4 to 6. They did not exercise any act of possession in respect of the properties purchased in their names. The plaintiff/respondent felt inconvenience in joint possession of the suit properties and so she asked the defendants to make partition of the suit properties in vain. So, she was compelled to file the suit for partition of the suit properties with declaration of her share to the extent of 1/4th therein. (2) The defendant nos.1 and 4 to 6 are contesting the suit by filing a written statement denying and disputing the averments made in the plaint. So, she was compelled to file the suit for partition of the suit properties with declaration of her share to the extent of 1/4th therein. (2) The defendant nos.1 and 4 to 6 are contesting the suit by filing a written statement denying and disputing the averments made in the plaint. They contended that the suit was not maintainable and bad for non-joinder of necessary parties. The suit properties as described in schedule ka and kha to the plaint were not at all joint properties as claimed by the parties. An amicable partition was held by a registered deed of partition in 1974. It was not true that some of the suit properties described in schedule ka of the plaint were purchased by Kiriti Mandal in the name of the proforma defendant nos.4 to 6. In fact, Panchanan Mandal died in 1347 B.S. leaving behind four sons and three daughters. He did not possess much lands and he was not solvent. His youngest daughter, Binapani, was however married to a rich man, namely, Provash Ch. Kumar who later on helped Panchanan to maintain his families. Provash Ch. Kumar had one wife and he was 50 years of age at the time of his marriage with Binapani. But he had no issue. The proforma defendant nos.4 to 6 acquired some properties out of the fund supplied by the father in law of the defendant no.1. The defendant no.1 and his brothers got some properties from their mother by virtue of a deed of gift. Similarly, they acquired some properties from their sister, Binapani Dasi. The defendant no.1 also acquired some of the properties out of his own fund from his business. Such properties should not have been brought in the suit. So the suit should be dismissed. (3) Upon consideration of the evidence on record, the learned Trial Judge decreed the suit in part declaring 4 annas share of the plaintiff in the suit properties as described in schedule ka to the plaint. No decree was passed with regard to movable properties described in schedule kha to the plaint. Being aggrieved by the impugned judgment and decree, the defendant no.1 and 4 to 6 preferred this appeal. (4) Mr. No decree was passed with regard to movable properties described in schedule kha to the plaint. Being aggrieved by the impugned judgment and decree, the defendant no.1 and 4 to 6 preferred this appeal. (4) Mr. Ghosh, learned Advocate of the appellants, contended that the suit as framed was not maintainable at all in the present form as all the co-sharers of the suit properties had not been included in the suit for partition. He contended that the learned Trial Judge failed to appreciate that all the heirs of Ram Ratan Mandal, i.e. the original owner were the necessary parties to the suit and in absence of such necessary parties, no decree for partition could be passed at all by the learned Trial Judge. He also contended that the findings of the learned Trial Judge that all the immovable properties mentioned in schedule ka to the plaint were joint properties, were totally wrong. The self-acquired properties of the defendant nos.1 and 4 to 6 were wrongly included in the suit for partition. He also contended that the learned Trial Judge failed to appreciate that the father-in-law of the defendant no.1 gave financial assistance for acquiring properties in the name of the defendant nos.4 to 6. He also contended that the learned Trial Judge did not consider the fact of amicable partition held in 1974 at all. Thus, the learned Trial Judge having failed to appreciate his mind with regard to joint properties properly, the decree passed by him should be set aside. On the other hand, Mr. Mitra, learned counsel, appearing for the respondents supported the judgment contending, inter alia, that all the joint properties of the parties had been brought into hotchpot in the suit for partition and that the suit was not bad for non-joinder of necessary parties. As the amicable partition in between the defendant nos.1 to 3 was effected amongst themselves without making the plaintiff a party therein, the same was not valid. In fact, there was no partition of the suit properties by metes and bounds and so the suit was maintainable in the present form. (5) Upon hearing the submission of the learned Advocate of both the sides and on perusal of the materials on record, we find that admittedly one Ram Ratan Mandal (since deceased) had three sons, namely, Panchanan Mandal (since deceased), Bhaktaram Mandal (since deceased) and Nibaran Mandal (since deceased). (5) Upon hearing the submission of the learned Advocate of both the sides and on perusal of the materials on record, we find that admittedly one Ram Ratan Mandal (since deceased) had three sons, namely, Panchanan Mandal (since deceased), Bhaktaram Mandal (since deceased) and Nibaran Mandal (since deceased). Admittedly, Panchanan Mandal died leaving behind four sons and three daughters. Admittedly, the plaintiff/respondent is the wife of the eldest son, Anadi Prasad (since deceased), of Panchanan Mandal. The defendant nos.1 to 3 are the other 3 sons of Panchanan Mandal. Admittedly, some of the suit properties as described in schedule ka to the plaint belonged to Ram Ratan Mandal. Anadi Prasad, the husband of the plaintiff/respondent died before Hindu Succession Act, 1956, came into force and his wife Sulekha i.e., the plaintiff got life interest in respect of the properties inherited by Anadi Prasad from his father. Now, the point of consideration is whether the learned Trial Judge was justified in decreeing the suit in part in the preliminary form declaring share of the plaintiff in respect of the immovable properties as described in schedule ka to the plaint to the extent of 4 annas share therein notwithstanding the specific objection taken by the defendants as regards non joinder of necessary parties. (6) The P.W.1 (plaintiff) was not in a position to state whether she had impleaded all the necessary parties and the co-owners in respect of the suit properties. Even she could not say whether certain immovable properties shown in schedule kha to the plaint belonged to Binapani and if Kiriti got those immovable properties from her. But from the admitted fact, we find that Ram Ratan had three sons, namely, Panchanan, Bhaktaram and Nibaran meaning thereby that each of them inherited 1/3rd share of the properties left by Ram Ratan. The plaintiff/respondent being an illiterate old lady could not enlighten whether there was any partition between Panchanan and his two brothers. During cross-examination, the plaintiff/respondent admitted that she had no paper to show that any amicable partition was held in between Panchanan and his brothers. The D.W.-1 in his evidence specifically stated that there was no partition among his father and the uncles either amicably or by a deed or by the order of the Court. No suggestion was given to him in cross-examination denying such allegation. The D.W.-1 in his evidence specifically stated that there was no partition among his father and the uncles either amicably or by a deed or by the order of the Court. No suggestion was given to him in cross-examination denying such allegation. In such circumstances, it was the duty of the learned Trial Judge not to enter into the merit of the case in the absence of the heirs of the uncles of the D.W.-1. (7) In spite of specific objection taken by the defendants as regards non-joinder of the heirs of the brothers of the Panchanan, the plaintiff having failed to add those persons and at the same time, having failed to prove partition among the Panchanan and his brothers, it was a fit case for dismissal of the suit for nonjoinder of the heirs of the brothers of Panchanan. (8) However, as this appeal arises out of a suit for partition where the cause of action is recurring in nature, instead of dismissing the suit, we give a chance to the plaintiff/respondent to implead those heirs by way of amendment. Let such application be filed before the learned Trial Court within a month from today. If no such application is filed, the learned Trial Judge will dismiss the suit. (9) If such application is filed within the said period, the learned Trial Judge will allow such application and will permit those added defendants to contest the suit by filing written statement and giving opportunities to lead evidence in support of their proposed defence. The parties will be at liberty to adduce fresh evidence if they so choose in addition to the evidence already on record and the added defendants should be permitted to cross-examine the witnesses who have already deposed. The judgment and decree passed by the learned Trial Judge are thus set aside and the suit is remanded back to the Trial Court for fresh disposal in the light of the observations made herein. However, we hereby record that the observations made above relating to right, title and interest of the parties are for the purpose of disposal of the appeal and that while deciding the suit after remand, the learned Trial Judge shall not be swayed away by any of the observations made above in the matter. Appeal is thus allowed. (10) Considering the circumstances, there will be no order as to costs. Appeal is thus allowed. (10) Considering the circumstances, there will be no order as to costs. (11) Urgent xerox certified copy of this order, if applied for, be made available to the learned Advocate for the parties on their usual undertakings.