PRATIMA GHOSH Vs. BINAPANI PAUL

JUDGEMENT

(1.) This appeal by the defendants is directed against the judgment and decree dated 28.2.1981 passed by Mr. A.K. Sen, Subordinate Judge, Ninth Court, Alipore, 24-Pgs.(S) in Title Suit No. 86 of 1973.

(2.) The three plaintiffs instituted this suit for partition and accounts on 19th September, 1973 alleging that Dr. Asutosh Ghosh, who generally practised at Rangoon and was governed by the Dayabhaga School of Hindu Law, in order to benefit of his wife, Smt. Supravabala Ghosh purchased premises No. 24, Convent Road, Calcutta (hereinafter referred to as 'the suit property' for brevity) without keeping any beneficial interest in himself. Dr. Ghosh died on 29th July, 1940 leaving behind the three plaintiffs and the defendant Nos. 2 to 4 being the daughters and Amal Kumar Ghosh (the original defendant No.1) being the only son as his legal heirs. Dr. Asutosh Ghosh never claimed the suit premises to be his own property and at his instance, mutation of the said premises was done in the name of his said wife Supravabala Ghosh who exercised all acts of ownership and possession during and after the lifetime of Dr. Asutosh Ghosh. The said Supravabala Ghosh died in 1942 leaving behind the said plaintiffs and the defendants and a married daughter, Ira Ghosh. The said plaintiffs and defendants accordingly acquired one-seventh share each in the suit property as the married daughter Ira Ghosh being already married when the succession reopened could not inherit any property. The suit property was all along used as residential dwelling house of the parties, but due to the ill-treatment of the wife of the defendant No. 1 the defendant Nos. 2 to 4 left the suit property in 1958. The plaintiff Nos. 1, 2 and 3 were married in the year 1944, 1946 and 1951 respectively and the defendant No. 4 was married in the year 1970. The defendant No. 1 started residing in the second floor of the suit property, and the ground floor and the first floor were let out to two tenants. The defendant No. 1, on behalf of the plaintiffs, used to realize rent from the tenants, paid taxes and made necessary repairs of the suit property, but never rendered any account to the plaintiffs. He also turned down the plaintiffs' request for partition of the suit property. Accordingly the instant suit has been filed for partition and accounts.

(3.) During the pendency of the suit, the defendant No.1 died on 2nd December, 1975 and his widow and the only daughter were made defendant Nos. 1A and IB respectively in the suit.