Tarak Nath Dutt vs Sasthi Charan Dutta

Abani Mohan Sinha, J.—This appeal is directed against the judgment and preliminary decree passed by the learned Judge, Sixth Bench, City Civil Court, Calcutta, in a suit for partition being Title Suit No. 70 of 1973. The facts of the case may briefly be stated as follows:

Subject-matter of thc partition suit is a joint family residence at 23/1 Hurro Dhole Lane, P.S. Jorabagan, Calcutta. That house properly belonged to one Kali Charan Dutta who died instated in June 1940. He left the Defendant No. 1 and two other daughters of his first wife who predeceased, him and also two minor daughters and two minor sons and his second wife Lakshmibala as heirs. Sasthi Charan, the Plaintiff No. 1 who is the eldest son by the second wife of Kali Charan brought the instant suit for partition of the joint family residential house and other moveable properties alleging that their older step-brother, the Defendant No. 1. Tarak acted as karta and manager of the joint family after thc death of the father and had the custody of moveables and jewelleries, monies, shares and securities. As the Plaintiff and other co-sharers felt inconvenience in the joint possession of the suit properly demanded partition from the Defendant No. 1. As the Defendant No. 1 did not comply with the demand, the instant suit was brought. The Defendant No. 1 entered appearance and filed a written statement. The Defendant No. 2, the full brother of the Plaintiff, and the step-brother of the Defendant No. 1 also filed a separate written statement. The learned Judge on consideration of the materials on record and the evidence adduced by the parties found that the Plaintiff failed to prove the existence of commission agency business for which a demand for account was made in the plaint. He also found that the Defendant No. 1 amicably divided moveables, ornaments amongst the co-sharers. Accordingly, he did not allow the claim of the Plaintiff for accounts in respect of the alleged joint family business and the moveables. He, however, decreed the suit in preliminary form on contest against the Defendant No. 1 and ex parte against other Defendants and declared the share of the Plaintiff to be /5/ as. in the joint family dwelling house contained in A schedule of the plaint. He directed the Defendant No. 1 to render partition of the suit property amicably by metes and bounds and ordered that in default a Pleader Commissioner would be appointed for partitioning the suit property.

Being aggrieved by and dissatisfied with the judgment and decree of the learned trial Judge the Defendant No. 1 has preferred this appeal.

The only grievance which the Defendant No. 1 has made out in the grounds of appeal that he is entitled to reimbursement on account of payment of municipal taxes, repair and maintenance in respect of the suit house out of his own income from the other co-sharers to the extent of the share.

Mr. B. Ghosh, the learned Advocate duly assisted by Mr. D. Chowdhury the learned Advocate representing the Appellant/Defendant No. 1, has drawn our attention to the decree and the ordering portion of the judgment which omitted to record any finding or any order with regard to the Defendant''s case of reimbursement.

Mr. Kashinath Dey, learned Advocate led by Mr. Nihar Ranjan Chatterjee, learned Advocate on the other hand, submitted that the trial Court while considering the cases of reimbursement as made out by the Defendant No. 1 in his written statement and evidence, found that the Plaintiff failed to prove the existence of the joint family business and that the Court also found that moveables were divided among the co-sharers long before the partition suit. The learned Judge dealt with this matter under issue No. 3 which relates to Plaintiffs claim for accounts from the Defendant No. 1. He did not, however, record any finding as to the expenses for maintenance of the joint family house property by payment of municipal taxes and by effecting repair which the Defendant No. 1 claims to have done on his own out of his own personal income.

In our view, in the suit for partition the question of reimbursement would only come after proper accounting. It is the admitted case of the party that the Defendant No. 1 after the death of their father Kali Charan acted as karta and manager of the joint family property and that he looked after the house property and paid municipal taxes and also incurred expenses for the marriage of his step-sister who also joined the suit for partition as Defendant. The Defendant No. 2 in para 13. of the written statement clearly admitted all these facts.

The Plaintiff as P.W. 1 has admitted that he never paid Corporation taxes and that never repaired the house. Mr. Ghosh, the learned Advocate for the Appellant representing the Defendant/Appellant, has drawn our attention to the deposition of his step-mother, the second wife of Kali Charan, in a maintenance suit (Money Suit No. 58 of 1971) brought by her against the Defendant No. 1. She also admitted that the Defendant 1 has all along been paying owners'' and occupiers'' share of the Corporation tax since the death of her husband. Mr. Ghosh in his fairness submits that since the Defendant No. 1 took the responsibility of getting her step-sister married and maintaining the minor step-brothers and sisters after the death of his father, the said Defendant would never claim the share of expenses from other co-sharers except in respect of payment of municipal taxes and repairs and maintenance of the joint family house property.

In our considered view the learned Judge of the Court below should have dealt with this aspect of the case in his judgment and should have passed a decree for accounts in this regard. Since the parties admitted the partition of moveable properties long before the institution of the partition suit, the findings of the learned Judge made in this respect should not be disturbed. Mr. Ghosh has submitted that his client, the Defendant No. 1, does not dispute the declaration of share of the co-sharers in the joint family house property.

Thus, on consideration of the entire facts and circumstances of the case, the pleadings of the parties, evidence on record and the submissions made by the learned Advocates for the both sides, we hold that the judgment and decree of the trial Court should be modified in part and the appeal should be allowed in part.

The preliminary decree so far as the declaration of share and for partition is concerned is affirmed by us. In our view, there should be a preliminary decree for accounts only in respect of expenses incurred by the Defendant No. 1 or any other co-sharers on account of municipal taxes and maintenance, repairs of the house properly. The accounts should be rendered amicably by the co-sharers and in default the Pleader Commissioner for accounts would be appointed. There will be no order as to costs.

Let the lower Court Records be sent down to the Court below expeditiously at the cost of the Plaintiff/Respondent No. 1. Such cost be deposited within a week.

Kalyanmoy Ganguli, J.

I agree.