TAPAN DASS Vs. SOSTI DASS

JUDGEMENT

(1.) The respondent sued his other brothers for partition and accounts has obtained the preliminary decree impugned in this appeal. The main argument on behalf of the appellants against the preliminary decree is that the learned Judge ought to have held that the plaintiff has already received his share of the family ornaments before the suit and that the Vehicle in question was the exclusive property of the defendant No.3 and, therefore, the learned Judge was wrong in decreeing partition of the ornaments and the Vehicle.

(2.) As to the family ornaments, the case of the defendants is that by and under an amicable Agreement for partition between the parties about one and half year before the suit, it was agreed that the ornaments were to remain with the defendant No. 1 for the time being to be divided among them on the expiry of two months from the date of the agreement and that, to quote from paragraph 8 of the written statement, "in pursuance of that Agreement the plaintiff has taken his share of ornaments immediately on the expiry of two months time in the presence of the parties and some gentlemen of the locality". The learned Judge has disbelieved the case of delivery to the plaintiff of his share of the ornaments and that, in our view, for good reasons. The evidence on record and the long-drawn and detailed Agreement for partition, which is Ext. 1, clearly show that the parties fell out and their relations were strained beyond repair. Under these circumstances, it is difficult to believe that the defendant No. 1 would deliver to the plaintiff his share of the ornaments without any written acknowledgment when the Agreement, under which these ornaments were to be delivered, was itself a written one drawn up by a local gentleman (P. W. 2) in the presence of other gentlemen of the locality. In the written statement, as noted above, the definite case of the defendants is that the plaintiffs share of the ornaments was delivered to him "immediately on the expiry of 2 months time", the statement of the defendant No. 1 in his deposition is that the ornaments were delivered "within two months", while the statement of the defendant No. 3 in his deposition is that the "ornaments were divided after 2 months of the execution of Ext. 1". Again while the definite case in the written statement is that such delivery was effected in the presence of "some gentlemen of the locality", the only witness examined to prove such delivery was D. W. 3, who according to defendant No. 1's own statement, "is very much known to me" and procured jobs for their factory and also served as a fitter there. This DW 3 has also stated that the ornaments were not weighed and it may be difficult to understand as to how co-sharers fighting with one another would or could agree to division of ornaments without any weighment. We, therefore, agree with the learned Judge that there is no reliable or satisfactory evidence to prove that the plaintiffs share of the ornaments was delivered to him.

(3.) As to the Vehicle, being a Tempo Van, we are satisfied that the learned Judge is right in holding the same to be a joint-property and decreeing partition in respect thereof. The defendant No. 1 has clearly stated that "he cannot say who is the owner of the Van definitely", though he has admitted that it stands in the name of the defendant No. 3. It is, therefore, significant that even though the Vehicle stands in the name of the defendant No. 3, the defendant No. 1 could not assert at the trial that the same is the exclusive property of the defendant No. 3 and not the joint-property, even though such a case is specifically made out in paragraph 12 of the joint written statement of the defendants verified by the defendant No. 1 himself.