ANIL KUMARMITRA Vs. GANENDRA NATH MITRA

JUDGEMENT

(1.) This 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.

(2.) This 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. Initially, 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. 130/1927 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.

(3.) It 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. Both the trial Court and the High Court rejected the relief.