Kumar Mitra & Ors Vs. Ganendra Nath Mitra & Ors  INSC 1522 (28 November 1996)
O R D
appeal by special leave arises from the judgment of the Division Bench of the
Calcutta High Court, made on April 29, 1988
in Original Decree No. 52/78.
case has a chequered history. The property bearing No.10-D, Puddapukur Road, P.S. Bhowanipur, Calcutta-20 is
the subject matter of an endless litigation at four stages.
the property was shared by two brothers Haridas and Gunendra in equal shares. Haridas
hypothecated his half share to Rabindra Nath Bose, who had filed Title Suit No.
461/1927 for foreclosure of mortgage and a preliminary decree therein was
granted on April 7,
1927. A decree for a
sum of Rs. 9,222/- was passed. Since the amount was not paid the property was
brought to sale and a final decree was passed on August 16, 1927 in which Rabindra Nath Bose had purchased the half share of
Haridas. A sale certificate in that behalf was given on February 22, 1928.
would appear that Gunendra a minor represented by his mother Sailabala, filed
Title Suit No.13 of 1929 which was ultimately compromised by Sailabala and Rabindra
Nath Bose by Compromise decree dated July 17, 1929 in which she received certain
amount, the details of which are not material. Thereafter, Rabindra Nath Bose
filed Title Suit No. 69/1928, which was renumbered as 128/1929, for partition
and separate possession of his half share purchased by him towards the share of
Haridas. A preliminary decree in that behalf was passed on December 17, 1931
and a final decree was also passed on July 18, 1934 in which Plot No.A was
allotted to Gunendra, represented by his mother Sailabala and a sum of Rs.
5,000/- in addition was given. Thus, it could be seen that the joint family
status of Haridas and his brother Gunendra had come to be severed after passing
of the preliminary decree on December 17, 1931.
Another Title Suit No. 71/1965 filed by the appellants in the court of Fourth
Subordinate Judge at Alipore for partition of the properties had by Sailabala
with Rabindra Nath Bose claiming that it was a joint family property and the
consideration for discharge of the mortgage with the Rabindra Nath Bose had
passed on from the joint family property. Therefore, they claimed for partition
of the half share had by Gunendra at a partition action laid by Rabindra nath
Bose in the partition Title Suit No. 129/1929. The question is whether the
appellants can claim partition of the share had by Gunendra, represented by his
mother Sailabala, as guardian.
the trial Court and the High Court rejected the relief.
Prakash Chatterjee, learned counsel appearing for the appellants, contends that
the High Court has found that the respondents have not proved their capacity to
purchase the property after paying consideration for discharge of the mortgage
debt and, therefore, in the absence of their proof of capacity to discharge the
debt, it must necessarily be construed that the consideration had flown from
the joint family. It is also contended that there is no proof of the severance
of the status of the joint family and joint family continues to exist and,
therefore, courts below have committed manifest error of law in not passing the
decree for partition. We find no force in the contentions. We requested the
learned counsel to read out from the plaint whether there is any averment made
in the plaint, viz., any averment or issue raised after the final decree was
passed in Title Suit No. 128/1929 and whether there is any reunion of the
members of both the branches and whether the share had by Gunendra was blended
so as to be treated as Joint family property. Learned counsel sought to read
out to us the plaint as amended and sought to contend that it gives the
indication that they remained to be members of the joint family and, therefore,
that gives a clue that joint family continued to exist. We fail to appreciate
the stand taken by Shri Arun Prakash Chatterjee.
preliminary decree was passed in Title Suit No. 128/1929, the joint family
status existing prior to the date came to a terminus and, therefore, there is
no presumption thereafter that both Haridas and Gunendra continued to be
members of the joint family. It is true that by the acts of the parties that
even after the previous partition, the continued to be members of the joint
family. But it should be by conduct and treatment meted out to the properties
by the members of the family in this regard. It must be pleaded as a fact and
proved that after the preliminary decree was passed on December 17, 1931 and
both branches were reunited and Gundndra through his mother had blended the
share had in final decree in the joint family property, the parties treated and
enjoyed it in that character as joint family property. Unfortunately, there is no
such plea nor proof.
these circumstances, it cannot be held that the joint family continues to exist
in the absence of which the question of partition does not arise. Under these
circumstances, we do not find any illegality in the decree passed by the trial
Court as affirmed by the High Court.
Civil Appeal is dismissed, No costs.
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