SOUMEN KUMAR KAR Vs. SWAPAN KUMAR KAR

JUDGEMENT

(1.) THE above appeal has been filed by the plaintiffs/appellants being dissatisfied with the judgment and decree passed by the learned Trial judge in Title Suit No. 173 of 1988 refusing to pass preliminary decree in respect of one of the four suit properties namely premises no. D-642 Lake Gardens, Calcutta (hereinafter referred to as the said suit properties ). The appellants/plaintiffs brought the said suit in the 3rd Court of Assistant District judge at Alipore against as many as 12 persons. Besides the suit property premises No. 162/8/1 Lake Garden, Kolkata now renumbered as D-620 Lake Gardens Kolkata, and 135 shares in the joint stock company known as R. Cambray and Company Private limited and 150 shares in the joint stpck company having its registered office at premises no. P-33 Mission Row Extension in the town of Calcutta are also subject-matter of the suit. Sum and substance of the case made out in the plaint is that the plaintiffs and the defendants are male and female descendants of one Narendra Chandra kar, since deceased, who died on 15th of february 1962 intestate leaving him surviving three sons viz. Sisir, Sasadhar and sunil and one daughter Protiva Bose and sole widow, all since deceased. The plaintiffs are the sons and daughter of late sasadhar, while the defendants are sons and daughter of late Sisir and late Sunil. The plaintiffs' case was that all the suit properties belonged to late Narendra though ostensibly in the name of other persons. Their father inherited undivided 1/3rd share of the suit properties in view of death of his mother and sister Protiva. Hence the plaintiffs are jointly entitled to undivided 1/3rd share in the suit properties. All the suit properties did not stand in the name of Narendra. The immovable properties being item Nos. 1 and 2 were in the name of Protiva daughter of Narendra and Subasini being grandmother of the parties and wife of Narendra, since deceased respectively. As such, the plaintiffs in the plaint stated that those two immovable properties were really owned by one Narendra but the same were owned by subasini and Protiva as benamidars. It was claimed that neither Subasini nor Protiva did anything to acquire such property. Protiva being the daughter could not acquire the said properly as her husband was not well placed in his working life and he was merely an employee of the Reserve Bank of india and had a small monthly income as such he could not probably supply money to Protiva to acquire the said item No. 1 of the suit property. Therefore, the said property was a joint family property. In the plaint it was further claimed that alleged story of adoption by Protiva, of Swapan is illegal, invalid and the same was never acted upon, so Swapan cannot claim ownership of the said item No. 1 property to the exclusion of any other person. In the plaint the following reliefs were claimed :

(2.) NONE except the first defendant, swapan contested the suit filing written statement of the defendants. All the defendants contested the said suit and said that the plaintiffs cannot have any share except in the premises No. D-620 Lake Gardens which stood in the name of the wife of narendra. It was said that the first defendant, Swapan Kumar Kar was adopted by protiva and this has been decided in another suit being Title Suit No. 11 of 1950 by judgment and decree. It is pertinent to mention that in both the written statements plea of maintainability of the suits as well as question of limitation was taken. The learned trial Judge framed the following issues :

(3.) IT is recorded in the judgment of the learned trial Judge that the defendants/respondents herein did not suggest any issue nor any issue was framed on the question of limitation. Learned trial Judge decided the issue No. 4 only and while deciding the same the learned Trial Judge has held that the case of adoption made out by the first defendant Protiva, since deceased, is legal, valid and acceptable in view of the judgment passed in Title Suit No. 11/1950 and said judgment is judgment in rem and not in personam. Therefore, the plaintiffs/appellants cannot in direct way challenge the decree which has become final. So far as the property being No. 2 is concerned, since acquired in the name of the wife of Narendra being the grandmother of the parties the same was declared to be the joint properties of the parties having their respective shares as claimed. Shares of the companies were not touched as the same has been decided by this hon'ble Court in company jurisdiction in company petition. The case of benami was not accepted by the learned trial judge. Hence, the properties taken in the name of Protiva was declared to be her own self-acquired property and as the first defendant is the adopted son of Protiva the same was excluded from the purview of partition suit.