MANMATHA NATH SEN Vs. GOPEE BALLAV SEN

JUDGEMENT

(1.) The material facts leading up to the present application may be shortly stated as follows: One Kumar Jamini Ballav Sen, a wealthy zamindar and proprietor of what is commonly known as the Dimla Raj Estate, died an or about the 19th July 1929 leaving him surviving his widow Sm Provabati (Deft. No. 4) 4 sons Gopee Ballav (Deft. No. 1), Jyotish (Deft. No. 2), Rukmini (Deft. No. 3) and the plaintiff Manmatha and a daughter Sm. Sushilabala (Deft. No. 5). On the 18th October 1934, Manmatha the youngest son filed a suit in the Alipore Court, against his mother and three brothers for partition of the properties left by his father. By an order made by this Court on the 20th January 1935 that Alipore suit was, with the consent of all parties transferred to this Court. The petition for transfer was "intituled in the matter of the Alipore suit and in the matter of clause 13 of the Letters Patent" The transferred suit has since been mark-ed as extra-ordinary Suit No. 4 of 1936, The late Mr. S. N. Banerjee was by an order made on the same day in the transferred suit appointed as the receiver of the properties in suit and the sole arbitrator to decide all matters in question in the suit including the partition of the joint properties with power to make one or more awards from time to time as he might think fit.

(2.) On the 1st February 1936 Mr. S. N. Banerjee made an award of and concerning the Ariadah Garden House and the Calcutta properties. By Clause 1 of the award the Ariadah Garden House was declared to belong to the plaintiff and his 9 brothers (Defendants Nos. 1, 2 and 3) absolutely in equal shares to be possessed by them jointly until the same was partitioned. The Calcutta properties valued at Rs. 1 36,757 were partitioned and divided in the manner specified in Clauses 3, 4, 5 and 6 of the award and as shown in the plan thereto annexed and marked "B". Clause 3 of the award was expressed in the terms following :

(3.) The award was duly filed in Court and on the 19th March 1936 judgment was pronounced on the award.