GAJENDRA NATH SAHA Vs. SOUMENDU ROY

JUDGEMENT

(1.) Monmohan Saha was a rich person of Dhaka (now in Bangladesh). He died leaving him surviving his three sons, Gopiballav Saha, Radhaballav Saha and Pranballav Saha. He had a daughter who also died. It is not clear whether she inherited any share in the property of Monmohan. Gopiballav, Radhaballav and Pranballav subsequently acquired properties in West Bengal. They jointly carried on business in Kolkata. They maintained a joint mess as undivided Hindu family having properties at Murari Pukur Road. Three brothers purchased the properties jointly by registered Conveyance dated March 3, 1986. The members of Hindu Undivided Family continued to occupy the new building constructed thereon as their residence with effect from 1967, a portion of which was let out to different tenants. Radhaballav was in Judicial Service. After partition of Bengal he opted for West Bengal and joined West Bengal Judicial Service. He acted as a Karta in the Hindu Undivided Family and used to have management and control of the administration of the joint estate. The other two brothers, Gopiballav and Pranballav were residing at Bangladesh at the material times. Radhaballav used to manage the entire affairs and was supposed to maintain accounts. The other two brothers, subsequently, came to India. They separated themselves from the joint mess in June 1972 however, the properties were kept under the control of the Hindu Undivided Family of which Radhaballav was the Karta. There was discord as the other two groups were not getting the true and correct picture of the family income. They were also not getting appropriate share in the property. The discord surfaced and took a worse turn when Radhaballav constructed a garage without the permission of the Municipal Authority and the other co-sharers.

(2.) The plaintiff being the son of Gopiballav filed a Title Suit being Title Suit No.41 of 1979 inter alia, claiming for partition and accounts. The plaintiff Gajendra Nath Saha complained of obstruction in the common passage in view of construction of the garage as also water facility. He also asked for accounts and appropriate share in the rental income. During pendency of the suit Radhaballav died leaving him surviving his heirs who were substituted subsequently. The other two sons of Gopiballav and the widow of Gopiballav were also made parties. The widow being the defendant no.5 died in May 1989. The other two sons being the defendant nos. 3 and 4 also transferred their share to Gajendra Nath as claimed by him.

(3.) Radhaballav filed written statement denying each and every allegation made against him. According to him, the suit was not maintainable as all the joint properties were not brought within the hotchpotch of the said partition suit. He also denied having collected exclusively the rent or kept joint fund of the estate. He disputed the authority of the plaintiff to file the suit in absence of any Will being executed by his elder brother Gopiballav. He denied the right, title and interest claimed by the plaintiff in respect of the suit property. According to him, Gopiballav as Karta of the joint family continued to look after business at Calcutta as well as in East Pakistan. He also asserted that the parties amicably partitioned the property amongst themselves whereby Gopiballav got the eastern block. According to him, the ornaments were still lying in the custody of the plaintiff. He was not entitled to interfere with the other two blocks as his father was allotted a distinctive block as above.