Sudhir Chandra Nawn vs Sunil Chandra Nawn

Ramendra Mohan Datta, J.—This partition suit was instituted in 1933. A preliminary decree was passed on April 29, 1936. One of the then Defendants Sm. Prosad Mohi Dassi, the mother of Tara Sundari, the present Petitioner herein, was declared to be entitled to one-sixth share in severalty as a Hindu daughter in respect of the joint family properties which included the Manicktola Bazar and a cloth business at Bowbazar Street (Now Bipin Behari Ganguly Street). The said two properties being the Manicktola Bazar and the cloth business were sold to certain co-sharers pursuant to an order of the Court.

By an order dated December 14,1942, it was, inter alia, provided that a portion of the purchase money in the share of the said Prosad Mohi amounting to Rs. 11,916-10-8 be transferred to the credit of the future reversioners and be invested by the purchasers of the said bazar in 3 1/2 % Government Promissory Notes within one year from the date thereof in such manner as might be prescribed by the Rules of the Reserve Bank of India.

By the said order dated December 14,1942, it was further, inter alia, provided:

a portion of the sale proceeds of the cloth business amounting to Rs. 12,916-10-8 only shall be transferred to the credit of the future reversioners and the same shall be invested by the purchasers of the business in 3 1/2 % Government Promissory Notes for one year from the date hereof in such manner as may be prescribed by the Rules of the Reserve Bank of India.

On May 10, 1949, the return of the Commissioner of Partition was confirmed. The said Prosad Moni Dassi died intestate on October 19, 1959, leaving her surviving the said Tara Sundari as her only daughter and sole heiress under the provisions of the Hindu Succession Act, 1956. Accordingly, the said Prosad Moni Dassi during her life-time became the absolute owner and entitled to the said sums and of the Government Promissory Notes upon the common into force of the Hindu Succession Act, 1956. Upon the death of Prosad Moni, Tara Sundari also became entitled to the said sums absolutely as the only heir and legal representative of the said Prosad Moni.

The main prayer in this application by Tara Sundari is for a direction upon the said purchasers co-sharers and/or their, present heirs to pay the said two sums of Rs. 11,916-10-8 and the sum of Rs. 12,916-10-8 with interest thereon amounting to Rs. 23,000, or alternatively, at the rate of 3 1/2% per annum from December 14, 1943, till the date of payment.

Several questions arise for the Court''s consideration, viz. whether the suit is still alive or has it come to an end after the passing of the final decree herein; secondly, what is the effect of the order whereby the purchasers co-sharers were directed to invest the said two sums in Government Promissory Notes; thirdly, in what capacity were the purchasers co-sharers holding the said part of the purchase moneys in respect of the said Manicktola Bazar and the said cloth business; and fourthly, is the Petitioner''s claim barred by limitation.

On the question as to whether the suit is still alive or not the following facts would be relevant for consideration. The final decree was passed in, 1949 whereby the report of the Commissioner of Partition was confirmed. It. is to be noted that under the said decree the purchasers co-sharers could not have parted with the said money at that time because Prosad Moni was alive. It appears that in 1962 on the application of Tara Sundari an order was made by Mallick J. recording the death of Prosad Moni and allowing amendment of the plaint. By the said order Mr. B.K. Chowdhury, Barrister-at-Law, was appointed the Commissioner of Partition in the place and stead of Mr. M.M. Ghose for the purpose of effecting partition of some other properties which were not partitioned by the said final decree of 1949. On the basis of that it is urged that the suit, is still alive. It is further urged that even as late as in 1964 by another order passed by this Court which was made on behalf of the purchasers co-sharers in this suit, the death of one of the original purchasers co-sharers was recorded and the heirs of the said person were brought on the records of the suit.

Mr. B.N. Sen appearing on behalf of Tara Sundari has drawn my attention to the judgment of Mallick J. in Sasadhar Chandra Day and Others Vs. Sm. Tara Sundari Dasi and Others, wherefrom it would appear that in respect of the estate of the said Gopal Chandra Nawn disputes arose as to who were the actual reversioners entitled to the estate of the said Gopal Chandra Nawn after the death of the said Prosad Moni Dassi. As stated above, Prosad Moni died on October 19, 1959, intestate leaving her surviving the Defendant Tara Sundari as her only heir. One Sasadhar Chandra Dey and Several others claimed to be the reversioners to the estate of the said Gopal Chandra Nawn after the death of the said Prosad Moni Dassi and this dispute arose by and between Sasadhar and others on the one side and Tara Sundari on the other. The said Sasadhar Chandra Dey and others filed a suit being Suit No. 926 of 1960 (Sasadhar Chandra Dey and Ors. v. Sm. Tara Sundari Dassi and Ors. ). In the written statement filed by Tara Sundari it was contended that after the coming into force of the Hindu Succession Act, 1956, Prosad Moni became absolutely entitled to inherit the estate of her father, being the said Gopal Chandra Nawn, and as the only daughter and heir of the said Prosad Moni she alone was entitled to the estate of the said Gopal Chandra Nawn. Mallick J, upheld her contention and dismissed the said suit by the said reversioners. Accordingly, her right as an heir to Prosad Moni was established by the said decree dated February 8, 1962. The principle enunciated by Mallick J. by the said judgment was upheld by the Division Bench judgment of this Court in the case of Lalchand Bhur and Another Vs. Sm. Sushila Sundari Dassi and Others, . It was observed by the said Division Bench that after the passing of the Hindu Succession Act there was no longer in existence a limited widow''s estate in respect of the properties nor any reversionary interest in respect thereof.

For all these reasons, I am of opinion that Tara Sundari''s right to inherit as the heir of Prosad Moni and the estate of Gopal Chandra Nawn and consequently her right to get the said sums under the said order dated December 14,1942, passed by Ameer Ali J. were established not earlier than the date of the said judgment, viz. on February 8, 1962.

By another order produced before me being the order dated September 8, 1954, passed by Mallick J. herein it was ordered that the death of the Defendant Bijoy Krishna Nawn be recorded and the register of the suit be directed to be amended by substituting the names of the heirs mentioned therein. Obviously, that order was also passed after the date of the final decree herein.

There is still another order passed on December 10, 1968, in the said Partition Suit No. 1970 of 1933 recording the death of the Defendant Kalachand Nawn and amending the suit register by substituting the names, address and description of the heirs named in the said order and by giving leave to the said heir to proceed with further proceedings herein. It should be mentioned here at this stage that neither the report of the Commissioner of Partition nor the final decree herein mentioned anything about the said direction upon the purchasers co-sharers to invest the said sums in favour of the heirs to the estate of Gopal Chandra Nawn, the father of the said Prosad Moni Dassi.

Mr. Sen has referred to the case of Satya Narayan Ghakravarty v. Biswanath Paul and Ors. 74 C.W.N. 871 wherein it was held that an application u/s 4 of the Partition Act was maintainable even after the final decree in the suit was passed and drawn up and before the possession of the allotted property was delivered to the stranger in execution by him of the said decree. The Division Bench of this Court in that case relied on the, observation of the Judicial Committee in the case of Mungal Pershad Dishit and Anr. v. Girija Kant Lahiri Choudhury L.R. 8 LA. 123 (133) that an application for execution of a decree was an application in the suit in which the decree was obtained and observed that the suit must be taken to be pending till the decree passed thereon was satisfied by execution.

On behalf of the co-sharers purchasers Mr. H.M. Dutt contends that the order of Mallick J. passed herein in the year 1962 whereby Mr. B. K. Chowdhury was appointed as the Commissioner of Partition was made in respect of the Halsibagan property only, the proper address whereof was 5/1 Nerode Behari Mallick Road. What was left to be done was only the demarcation in respect of the said property. The same could not be done earlier because the property was tenanted and litigations were pending.

Mr. Dutt took the point of limitation by relying on Article 136 of the Limitation Act, 1962. He contended that after the final decree had been passed the Court had no hold over the said amounts and, accordingly, this application could not be maintained.

In my opinion Mr. Dutt''s contention cannot be accepted. As stated above, partition proceedings are still continuing under the said Suit No. 1970 of 1933 and, accordingly, from time to time orders are being passed and directions are being given in enforcement of the said orders and decrees. The suit is still very much alive. The proceedings are still continuing and the Court has not yet lost its hold over the said amounts which the purchasers co-sharers were directed to invest by the order dated December 14, 1942. The question of computing the time from the date of the order for the purpose of limitation could not arise because the purchasers co-sharers were not asked to appropriate the said amounts. The person or persons to whom the said amounts were to be ultimately paid has not yet been decided, nor could it be decided at the date of the said order for making the investment. The said purchasers co-sharers were directed to invest the said amounts and the effect of the order was that until further orders none had the right to get the said money.

The property was directed to be sold pursuant to an order made in the partition suit. Some of the co-sharers purchased the property. The sale proceeds could not be made over to Prosad Moni since she was then a limited owner. The purchase money was to be kept with somebody till the death of the limited owner. Since the purchasers were co sharers, the Court in its wisdom at that time thought it best to keep the said sum with the said co-sharers with directions on them to invest the sums and to hold the Government Promissory Notes till succession reopened after the death of Prosad Moni or until further orders of the Court in the said partition suit. The disputes being settled as to who is entitled to the said sums and the partition suit being still alive, the purchasers co-sharers are bound to make over the said sums to the Petitioner. Under the circumstances, the question of limitation cannot arise.

In my opinion, under the said order of December 14,1942, the purchasers co-sharers could hot have, at any point of time, utilised the said amount for their own use and they are bound to make it over as and when they are ordered by this Court after the rights of the proper parties are established. By the order parsed in the said decree in 1962 Tara Sundari became entitled to the said two several sums and on the basis thereof it must be held that the said purchasers co-sharers were holding the said sums as trustees for the benefit of Tara Sundari pursuant to the said order of this Court. In para. 34 of the petition the Petitioner has claimed the said amounts from the said purchasers co-sharers and/or their legal representatives on the ground that such purchasers co-sharers had been holding the said several sums of money as trustees for the benefit of the said Prosad Moni and since her death for the benefit of the Petitioner.

Under those circumstances, I hold that the suit is still alive ; that the purchasers co-sharers and/or their heirs and legal representatives were bound to invest the said several sums which they were directed to do by order dated December 14, 1942, and they had been holding the said sums so long as trustees for the benefit of Tara Sundari and are now bound to make over the said amounts with interest thereon at "the rate of 3� % per annum and that no part of the Petitioner''s claim is" barred by law of limitation.

Accordingly; I make an order as follows:

There will be an order in terms of prayer (a) recording the death of Jitendra Kumar Nawn. There will be an order in terms of prayer (b) for amendment of the suit register as prayed. There will be an order in terms of prayer (c) directing the parties mentioned therein to pay the said sums of Rs. 11,91640-8 and Rs. 12,916-10-8 with interest thereon at the rate of 3 1/2% per annum from December 14,1943, till the date of the payment and such payment be made forthwith. The Petitioner Tara Sundari is entitled to the costs of this application. Certified for counsel.