KANAILAL MONDAL Vs. DHIRENDRANATH MONDAL

JUDGEMENT

(1.) This is an appeal by Kanailal Mondal, the sole defendant in a suit for partition and accounting, which was raised on Aug. 5, 1952, by his younger brother Dhirendra Nath Mondal, now the sole respondent before us, and which a learned subordinate judge, 24-Paraganas, decreed in a preliminary form on Sept. 12, 1959.

(2.) The grievence of the appellant is that the preliminary decree so entered does not include the joint family properties comprising a house and three specified sums of money set out below :

(3.) The Cossipore house is taken up first. Exhibit A is the certified copy of the relative sale deed from which it appears inter alia that this house in controversy was purchased by the respondent Dhirendra Nath Mondal on March 11, 1940, from the then owner, one Manmatha Nath Bhattacharya, for the consideration of Rs. 5,999. A sale as this was preceded by a bainanama, an agreement for sale, on Jan. 31, 1940, when Lalit, the father of the two litigating brothers, had paid, and the vendor Manmatha had received a sum of Rs. 101 by way of earnest. The balance of Rs. 5,898 purporting to have been paid by the respondent Dhirendra on March 11, 1940, "in full satisfaction of the entire consideration money" agreed upon, the sale deed came to be executed. In other words, whereas the agreement for sale was between the father (Lalit) and the vendor, the sale deed was between the son (Dhirendra) and the same vendor. Not that any illegality lurks here. It is only a factual statement of the true position as recited in the sale deed itself and as admitted by Dhirendra himself in his cross-examination.