SURJYA KUMAR DAS Vs. MAYA DUTTA

JUDGEMENT

(1.) The present suit for partition was filed by one Maya Dutta, daughter of Radha Raman Das alias Radha Charan Das, a Hindu governed by the Dayabhaga School of Hindu Law. He was the owner of the disputed property, being premises No. 3B Collins Street, Calcutta. The defendant, Surjya Kumar Das, is her brother. On the 4th April, 1969, she instituted the Suit No. 964 of 1969 against her brother in this Court for a declaration that she and her brother belonged to a joint family governed by the Dayabhaga School of Hindu Law and she was the sole and absolute owner of the premises No. 3B Collins Street, Calcutta, and for other reliefs. Ultimately, the parties came to terms and a decree was passed that the parties were governed by the Dayabhaga School of Hindu Law and they were absolute owners of the disputed property to the extent of a moiety share each. In view of the strained relations between them, It has become inconvenient for her to enjoy the property. She called upon her brother to effect an amicable partition. Her brother did not do so and hence the suit for partition and accounts.

(2.) The defendant filed a written statement alleging, inter alia, that the plaintiff was out of possession for more than twelve years and so, she could not ask for partition without paying ad valorem court fees. The parties were governed by the Mitakshara School of Hindu Law.

(3.) The learned Judge of the City Civil Court accepted the plaintiff's version and overruled the defendant's contention regarding the provisions of Section 23 of the Hindu Succession Act. He stated that though the previous Suit No. 964 of 1969 was compromised, it was not registered and hence, that decree had no value in the eye of law. The claim for accounts was not allowed. He held that the parties had moiety share each and, a preliminary decree for partition was passed. The propriety of this decision has been challenged by the defendant in this appeal.