SANJUKTA CHATTERJEE Vs. MRINMOY CHATTERJEE

JUDGEMENT

(1.) THIS appeal by the plaintiff is directed against the judgment and decree of dismissal passed by Shri R. K. Kar, learned Sub-ordinate Judge, 1st Court. Alipore, in a suit for partition and accounts.

(2.) THE plaintiff sued her brothers on the allegations that the suit premises no. 18, Kalighat Road were purpchased by her mother Khjrod Kurriari out of her own Joutuk stridhan money in the benami of her husband Upendra Nath Chatterjee under a registered sale deed dated 15th December, 1917. On or about 12th of August, 1930 Upendra Nath executed a registered deed of release in favour of Khirod Kumari acknowledging that the said purchase was made by her in his benami. The defendants nos. 1 and 2 were the attesting witnesses to the said deed. In or about 1938 Khirod Kumari died and on her death the suit premises devolved upon her two unmarried daughters, namely, the plaintiff and her elder sister Bimala in equal shares. Upendra Nath died in or about 1940, Bimala died a spinster in or about January, 1967 leaving the plaintiff, and the defendants as her legal heirs. Accordingly to the plaintiff she inherited half of Bimala's 8 annas share. Thus the plaintiff claimed two third shares in the suit premises and the remaining one third share belonged to the defendants, The defendant no. 1 being the eldest brother was in the management of the suit premises and rented out the same to certain tenants on several occasions and derived rent and usufruct thereof, The defendant no. 1 also disposed of immovable property of the approximate value of Rs. 5,000/-belonging into Khirod Kumari and misappropriated the sale proceeds. The plaintiff's prayer for partition being refused by the defendants, she was compelled to commence the present suit.

(3.) THE suit was contested by the defendants on a joint written statement. They denied all the material allegations made in the plaint. It was asserted by them that the suit properties had been purchased by Upendra Nath with his own money. On 15. 12. 1917 Upendra Nath sold his property at 131 B. Teliapara Road and paid off the sum of Rs. 560/- being the mortgage due in respect of the said property out of the consideration money. On 17. 12. 1917 Upendra also sold the plot of land at Dihi Semaphore for Rs. 750/- and in that sale deed Khirod Kumari was also made a party as she was the demander of her husband in respect of the said property, Thus, with the balance of the sale proceeds and also by taking a loan of Rs. 2,250/- Upendra purchased the suit premises for Rs. 4,000/ -. The loan was repaid in 1922 by mortgaging the suit premises to one Anil bhusan Chowdhury. Thereafter, he renovated the existing structure and made some additions. He was in possession as absolute owner on payment of Corporation tax and other charges till his death in 1940. The mortgage loan due to Anil Bhusan was repaid by Upendra Nath on 26/4/1926 with his provident fund money.