NARENDRA NATH DUTT Vs. JITENDRA NATH DUTT

JUDGEMENT

(1.) A preliminary objection has been taken by Mr. Roy on behalf of respondent No. 3 that this appeal is not maintainable. In my opinion, the objection ought to prevail.

(2.) The appeal is against an order of Mallick, J., dated 19-3-1957, whereby he allowed respondent No. 3, Sm. Suprova Dutta, to amend her written statement in a Partition Suit to which she had been added as a party some time after its institution. The appellant, who is another of the defendants in the Partition Suit, contended before the learned trial Judge that the amendment ought not to be allowed and, having failed with his objection there, has now appealed.

(3.) The subject-matter of the Partition Suit is the estate left by one Jogendra Lal Dutt, who died intestate on 21-10-1926, without leaving any will. He left him surviving five sons, namely, Jitendra, Rabindra, Narendra, Nripendra and Upendra as also his widow, Sm. Narayan Kumari. Nripendra died childless and intestate some time in 1930 and Narayan Kumari died intestate in 1939. In 1953, Jitendra filed a suit against his three surviving brothers for partition of the joint estate and set out in a schedule to the plaint the properties which he considered to be joint family properties. In that suit Narendra, the third of the sons of Jogendra, filed his written statement in August, 1953 and he alleged in paragraph 15 of the written statement that Rabindra had built a honeat No. 74A Bhupendra Bosc Avenue in the be-nami of his wife, but with joint family funds. Some time thereafter, Upendra, the fourth brother, died and a suitable amendment of the plaint was made. We are informed that, for some reason or other, there was next a general order, permitting parties to file additional written statements. The appellant Narendra availed himself of that order and filed an additional written statement in February, 1955. In paragraph 8 of that statement, he elaborated what he had already alleged in paragraph 15 of his earlier statement and stated that the house at No. 74 Bhupendra Bose Avenue also appertained to the joint family estate in which Sm, Suprova Dutta, in whose name the house stood, had no beneficial right or interest. Having filed that additional written statement, the appellant applied for the addition of Sm. Suprova Dutta as a party to the suit and by an order made on 18-7-1956, she was added.