Swapan Kumar Das And Ors vs Ila Das

This first appeal involves a very small question and can be disposed of summarily. The appeal is filed by the original defendants. Suit was filed by the sister seeking partition of the family property left behind by their father who died on 07.01.2013. The plaintiff pointed out that there were immovable properties over which all three siblings, i.e. plaintiff the sister and defendants the two brothers would have equal right. In such suit one of the grounds taken by the defendants in the written statement was that father had left behind a fixed deposit of `12,00,000 (rupees twelve lakhs) where the sister was a nominee and such amount should also form part of the common hotchpotch to be equally divided amongst all members of the family. The plaintiff was examined as PW-1. In her sworn statement with respect to this allegation of her brothers she had stated as under:

"10. That in the said reply they manufactured a capricious story that our father purchased several cash certificates, fixed deposit certificates etc. for Rs.12,00,000/- (approx.) making me his nominee and the same were lying with me and that from the altercation they came to know that I have already encashed the said cash certificates etc. when the defendants were also entitled to 1/3rd share of the said amount. Fact remains, my father made me nominee in a fixed deposit account the matured value of which was Rs.2,19,560/- (Rupees two lakhs nineteen thousand five hundred sixty only) and I told them the said fact and also informed that I was ready to give them their share but they disbelieved me and refused to receive it and made out a false story that the total amount was Rs.12,00,000/- (Rupees twelve lakhs only) (approx.)."

The trial Court while allowing the suit, in the context of the claim of the brothers of fixed deposit of `12,00,000 (rupees twelve lakhs) this is what the learned Judge had to say:

"26. As regards the issue of movable property my view is that the fixed deposit certificate and cash certificate having value of Rs.12,00,000/- was though pleaded by defendants but existence of such fixed deposit certificate and cash certificate was not admitted by plaintiff and not also proved in the evidence. So it cannot be said that this alleged fixed certificate and cash certificate of Rs.12,00,000/- are also the subject matter of the suit. Though plaintiff admitted the fact of existence of one fixed deposit certificate of Rs.2,19,560/- in her evidence but in my view, non-inclusion of this fixed certificate in the subject matter of the present suit for partition of the joint immovable property, is not fatal.

In case plaintiff does not divide the maturity value of this admitted fixed deposit certificate, there is recourse in the hands of defendants to initiate criminal proceedings for breach of trust or move proceedings under the Indian Succession Act, 1925 for getting succession certificate to receive the matured value of the fixed deposit certificate. Therefore, I cannot agree with the contention of Ld. Counsel of defendants that the suit is not maintainable due to non-inclusion of movable property. In other words, I hold that the suit of plaintiff seeking preliminary decree for partition of the suit property is well maintainable and she is entitled to get the preliminary decree of partition. At the stage plaintiff is not entitled to any other relief as final decree will be passed after physical division of the share of the parties in terms of preliminary decree."

At the outset, learned counsel for the respondent original plaintiff stated that the plaintiff sticks to her declaration made in the deposition before the trial Court and always was and still ready and willing to equally divide the said fixed deposit of maturity value of `2,19,560.

The counsel for the appellants original defendants stated that the defendants are not aggrieved about the decree regarding 1/3rd share of the plaintiff in the immovable properties, i.e. the suit property.

Under the circumstances, in partial modification of the decree and judgment passed by the trial Court, it is provided that the plaintiff shall also account for the said sum of `2,19,560 representing the maturity value of the fixed deposit and part with 2/3rd thereof in equal measures with her two brothers. This shall be done within a period of one month from today.

With these directions, appeal is disposed of.

Pending application(s), if any, also stands disposed of.