BEHARI LAL MURARKA Vs. HEERALAL MURARKA

JUDGEMENT

(1.) This is an application on behalf of the Plaintiffs to enforce an undertaking given by the Defendant Sohanlal Murarka on May 31, 1951, on behalf of himself and the Defendant companies to pay maintenance. The suit in which this application is made has- been instituted by the widow and son of one Lain Lal Murarka, deceased. The Defendants impleaded are the members of the Murarka family and four private companies being the family companies of which the Murarkas are shareholders. The suit is for a declaration that the Plaintiffs as the heirs of Lalu Lal are entitled to l/8th share in the joint family properties and businesses mentioned in the plaint including the properties and funds transferred to the Defendant companies, respectively, for setting aside the various alienations and transfers in favour of the companies, for a declaration that the Plaintiff Beharilal is entitled to separate properties left by Lalu Lal, for ascertainment of the rights of the parties, for partition and for other reliefs more particularly mentioned in the plaint. At the date of the suit Beharilal was a minor and the suit was instituted by a next friend. The suit though instituted in 1938 was not heard till November 23, 1953, when the hearing of the suit began and the hearing continued for months.

(2.) On April 17, 1951, a notice of motion was taken out on behalf of the Defendant Janki Debi for the appointment of a Receiver, for payment of maintenance and for other reliefs. Similar notice was taken out by the Plaintiffs long ago on February 19, 1943. The said two applications were disposed of by an order of the Court on May 31, 1951. Practically no order was made on the said two notices on an undertaking being given by the Defendant Sohanlal on behalf of himself and the four company Defendants to pay maintenance at the rate of Rs. 1,200 per month to the Defendant Janki Bai as also to the Plaintiffs. The under-taking is to be found not in the operative portion of the order but in the earlier portion. After reciting the notices and the respective affidavits filed and the names of the counsel who were heard on the said application the order records the undertaking given in the following terms:

(3.) It is to be noted that Sohanlal was represented in the applications by Mr. M. N. Banerjee, instructed by Messrs. Dutt and Sen, whereas the Defendant companies were being represented by Mr. Sankar Banerjee instructed by Messrs. Mitra and Mitra. It appears that the maintenance was being paid regularly up to and including the month of October, 1953. As stated before, the suit was taken up for hearing by Sarkar, J. on November 23, 1953, but the payment of maintenance was stopped on and from November, 1953, which became due on December 15, 1953. Thereupon a copy of the order passed on May 31, 1951, was served on Sohan Lal on February 21, 1954, and demand was made for payment of maintenance which remained unpaid as stated above Thereafter certain correspondence passed between the Plaintiffs' solicitors and the Defendant Sohanlal. Maintenance not having been paid the present notice was taken out by the Plaintiffs on April 5, 1954. I am informed that at the date of the notice, the hearing of the suit was going on. On the motion coming to the list of Sarkar, J., directions for filing affidavits were given. After the respective affidavits were filed, it was found that facts were disputed in the respective affidavits and in consequence the Court felt that the application could not be disposed of without oral evidence. Thereupon the applicction was set down to be heard on evidence. In the meantime Sarkar, J., left this Court and the list was assigned to me. When the matter came up for hearing before me, I thought that inasmuch as Sarkar, J. was fully acquainted with the disputes amongst the Murarkas and in view of the fact that at the earlier stages he dealt with the matter, it should be adjourned till Sarkar, J. returns back and takes up this list. Both the parties, however, informed me that the application was not part heard by Sarkar, J. and pressed me to take up the matter. So far as the Petitioners are concerned the urgency was that they were not getting any maintenance since November, 1953, and so far as the Respondent is concerned the urgency was in the expressive phrase of their counsel Mr. Banerjee "the hanging of the Damocles sword." Hence I had no other option than to take up the application myself even though I wished that Sarkar, J. had heard the application.