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2021 DIGILAW 153 (CAL)

Supriya Kumar Gooptu v. Aloka Gooptu

2021-03-04

ARINDAM MUKHERJEE

body2021
JUDGMENT Arindam Mukherjee, J. - Three brothers namely Amiya Kumar Gooptu, Supriya Kumar Gooptu (plaintiff No.1) and one Saibal Kumar Gooptu, jointly owned and possessed an area of land measuring about 1 Bigha, 3 Chittacks and 41 Sq. Ft with a four storeyed building built up on a portion thereof along with certain other structures standing thereat being Municipal Premises No. 7A, Prafulla Chandra Sen Sarani (formerly known as Middleton Street), Kolkata-700071 (hereinafter referred to as the 'said property'). Subsequently, the four storeyed structure was demolished as required and new construction of separate lots by the joint owners as agreed between themselves were made but the premises number remained the same, and as such is referred to as the said property. 2. As appears from the registered deed of partition dated 30th September, 1997 (Exhibit A) that a Memorandum of Understanding dated 7th February, 1985 and a Supplemental Memorandum of Understanding dated 9th November, 1987 were entered into by the said three brothers, Amiya Kumar Gooptu, Supriya Kumar Gooptu and Saibal Kumar Gooptu, by and under which it was agreed that the said property would be partitioned and divided by metes and bounds amongst them. As per such understanding Lot D measuring 4 cottahs, 9 chittacks 35 sq ft. of the said property was allotted to the said Amiya Kumar Gooptu, Lot C measuring 4 cottahs, 3 chittacks 14 sq ft. of the said property was allotted to the said Saibal Kumar Gooptu, Lot B measuring 4 cottahs, 4 chittacks 15 sq ft. of the said property was allotted to the said Supriya Kumar Gooptu and Lot A measuring 2 cottahs, 14 chittacks more or less of the said property with a four storeyed building standing thereat along with a common passage (hereinafter referred to as the suit property) was agreed upon to remain in common ownership of the said Amiya Kumar Gooptu, Supriya Kumar Gooptu and Saibal Kumar Gooptu. 3. Lot A, B, C and D were subsequently numbered as Premises No. 7A/1A, 7A/1B, 7A/1C and 7A/1D Middleton Street (now Prafulla Sen Sarani) Kolkata-700071 respectively. The suit property, Lot A that is premises no. 7A/1A more fully described in the schedule of the plaint is the subject matter of the instant partition suit. 4. 3. Lot A, B, C and D were subsequently numbered as Premises No. 7A/1A, 7A/1B, 7A/1C and 7A/1D Middleton Street (now Prafulla Sen Sarani) Kolkata-700071 respectively. The suit property, Lot A that is premises no. 7A/1A more fully described in the schedule of the plaint is the subject matter of the instant partition suit. 4. On 14th October, 1993 the said Saibal Kumar Gooptu died after publishing his last will and testament dated 10th April, 1992 appointing Smt. Chitrita Gooptu (plaintiff No.2) as the sole Executrix to his estate. Smt. Chitrita Gooptu obtained probate of the last will and testament of Saibal Kumar Gooptu from this Court in December, 1993 (Exhibit D). 5. On 30th September, 1997 a registered partition deed marked as Exhibit A in the proceeding was executed by and between Amiya Kumar Gooptu, Supriya Kumar Gooptu and Smt. Chitrita Gooptu representing the estate of Saibal Gooptu acknowledging and admitting the partition of the said premises into Lots A, B, C and D between Amiya Kumar Gooptu, Saibal Gooptu and Supriya Gooptu as agreed under the Memorandum of Understanding dated 7th February, 1985 and the Supplemental Memorandum of Understanding dated 9th November, 1987. Even after execution of the said partition deed, the suit property (Lot A) remained under joint ownership of the three branches headed by the three brothers. 6. Amiya Kumar Gooptu by a letter dated 30th September, 1997 (Exhibit B) addressed to the plaintiffs, informed the plaintiffs that he was holding the following documents in respect of the suit property which he assured to produce as and when requested:- 1) Original Registered lease and agreement with M/s.Tata Korf Engg. Services Ltd. 2) Original Tenancy Agreement for rental & other charges with M/s.U B Ltd and their original letter for vacating the flat on expiry of the term. 3) Original Tenancy Agreement with M/s.Gupta Auto Agency. 7. On 18th January, 2006, the said Amiya Kumar Gooptu died after publishing his last will and testament dated 14th November, 2005 as per the statement made in the plaint, appointing Smt. Aloka Gooptu the defendant herein as the sole executrix to his estate. Smt. Aloka Gooptu obtained the probate in 2006. 8. In or about April, 2014, the plaintiffs being desirous of partitioning the suit property approached the defendant for executing the Deed of Partition dividing the suit property mutually. Smt. Aloka Gooptu obtained the probate in 2006. 8. In or about April, 2014, the plaintiffs being desirous of partitioning the suit property approached the defendant for executing the Deed of Partition dividing the suit property mutually. Subsequently further negotiations were ensued but despite their best efforts the parties could not arrive at any mutual understanding to amicably partition the suit property. All attempts for such partition according to the plaintiffs ultimately failed. The plaintiffs by a letter dated May 6, 2015 marked as Exhibit C requested the defendant to effect the partition of the suit property on mutually agreed terms and conditions within a period of 15 days from the date of receipt thereof to which neither the defendant replied nor did the defendant take any steps for effecting the said partition. 9. The plaintiffs namely Supriya Kumar Gooptu and Smt. Chitrita Gooptu are before this Court against the defendant Smt. Aloka Gooptu inter alia claiming a preliminary decree and a final decree for partition of the suit property. The defendant has not contested the suit. 10. The Court upon perusal of documents and evidence before it, finds that the three branches headed by Supriya Kumar Gooptu (plaintiff no. 1), Saibal Kumar Gooptu represented by his wife and executrix Smt. Chitrita Gooptu being the plaintiff no. 2 and Amiya Kumar Gooptu represented by his wife and executrix Smt. Aloka Gooptu, the defendant had initially agreed to the partition of the said property under the two Memorandum of Understanding respectively dated 7th February, 1985 and 9th November, 1987. The partition as agreed under the said two Memorandum of Understanding was finally given effect to under the partition deed dated 30th September, 1997 (Exhibit A) when Saibal Kumar Gooptu had already died. The three brothers , therefor, had agreed that each one of them had 1/3 share of and in the said property. It is proved that the said property was divided as per 1/3 share to each in Lot B, C and D. The allotment of Lot B to Supriya Kumar Gooptu (plaintiff no. 1), Lot C to Saibal Kumar Gooptu (represented by plait niff no. 2) and Lot D to Amiya Kumar Gooptu (represented by the defendant) is also proved. Lot A being the suit property along with a common passage was left undivided amongst the three brothers is also established. 1), Lot C to Saibal Kumar Gooptu (represented by plait niff no. 2) and Lot D to Amiya Kumar Gooptu (represented by the defendant) is also proved. Lot A being the suit property along with a common passage was left undivided amongst the three brothers is also established. After the death of Saibal Kumar Gooptu and Amiya Kumar Gooptu their representatives namely Chitrita Gooptu and Aloka Gooptu accepted the partition of the said property and acted in terms thereof is also established. There is as such no dispute that the suit property is a joint property. There is also no dispute as to the shares of Supriya Kumar Gooptu, Saibal Kumar Gooptu and Amiya Kumar Gooptu with regard to the suit property. The shares, by drawing analogy from Exhibit A on the contrary is admitted. It further appears from Exhibit A that the valuation of Lot B, C and D are Rs. 6,40,625/-, Rs. 5,52,161/- and Rs. 6,05,208/- respectively. There may be a difference in valuation of Lot B, C and D as formally allotted under the Deed of Partition dated 30th September, 1997 (Exhibit A) but such partition and allotment has been accepted and acted upon without the parties thereto reserving their right to claim adjustment or owelty money for the difference in valuation from out of the suit property. On the basis of the documents proved at the trial, I am, therefor, of the opinion that the suit property is a joint property wherein Supriya Kumar Gooptu, the plaintiff has 1/3 share and the branches of Saibal Kumar Gooptu and Amiya Kumar Gooptu respectively have 1/3 share each. It is also established that partition was demanded by the plaintiffs and was refused by the defendant by her acts. In any event the filing of the suit amounts to a claim for partition. 11. The plaintiff no. 1 was examined in the suit. It was deposed by the said plaintiff no. 1 that Aloka Gooptu has obtained probate in 2006 of the last will and testament left behind by Amiya Kumar Gooptu. Similarly, Chitrita Gooptu has obtained probate of the last will and testament left behind by Saibal Kumar Gooptu in 1993. The plaintiff no. 1 has deposed that the beneficiary to the will left behind by Saibal Kumar Gooptu are his wife Chitrita Gooptu ( plaintiff no. 2) and his minor children. Similarly, Chitrita Gooptu has obtained probate of the last will and testament left behind by Saibal Kumar Gooptu in 1993. The plaintiff no. 1 has deposed that the beneficiary to the will left behind by Saibal Kumar Gooptu are his wife Chitrita Gooptu ( plaintiff no. 2) and his minor children. It is, however, not clear whether Chitrita Gooptu and Aloka Gooptu are still in the process of administering the respective estates or the same is complete with the assent to the legacies. In any event the branches of Saibal Kumar Gooptu and Amiya Kumar Gooptu have the representation through plaintiff no. 1 and the defendant. In such circumstances, the suit can be decreed in preliminary form as framed. 12. It is declared that Supriya Kumar Gooptu has 1/3 share in the suit property i.e., premises no. 7A/1A, Prafulla Chandra Sen Sarani (formerly Middleton Street ) Kolkata - 7000071. The branch of Saibal Kumar Gooptu and Amiya Kumar Gooptu have 1/3 share each in the suit property. The legacies under the Will of Saibal Kumar Gooptu and Amiya Kumar Gooptu will jointly get the 1/3 share of their respective branch. The suit property on being established to be a joint property is required to be partitioned by metes and bounds as the declared shares to the extent as practically possible. 13. Debojyoti Dutta, an Advocate and member of the Bar Library Club is appointed as Commissioner of Partition at a consolidated remuneration of Rs.75,000/- (Seventy Five Thousand) to be borne in equal share by the three branches. The Commissioner of Partition will be entitled to engage a Civil Engineer-Surveyor of his choice preferably from the empanelled Civil Engineer Surveyors of this Court. The Commissioner of Partition, if requires, the assistance of Civil Engineer Surveyor shall within a month from date engage such Civil Engineer Surveyor. The remuneration of the Civil Engineer Surveyor will be borne equally by the three branches. The Commissioner of Partition shall file his report within (six) months from date indicating clearly as to whether the suit property is partiable by metes and bounds and if so, the Commissioner of Partition shall draw three separate Lots and also state which Lot so demarcated is to be allotted to which branch and supply the reasons for such proposal. The Commissioner of Partition shall file his report within (six) months from date indicating clearly as to whether the suit property is partiable by metes and bounds and if so, the Commissioner of Partition shall draw three separate Lots and also state which Lot so demarcated is to be allotted to which branch and supply the reasons for such proposal. The Commissioner of Partition in his report shall also indicate the lease rental or other charges collected from the suit property if the same or any part thereof has been either leased or rented or given under a license and who are the persons collecting such lease rental/license fees. 14. The suit is as such decreed in preliminary form as aforesaid with liberty to mention to obviate any difficulty. The preliminary decree be drawn up expeditiously. 15. Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on priority basis after compliance with all necessary formalities.