BHABAKALI BANERJEE Vs. SAIBALINI DEVI

JUDGEMENT

(1.) This appeal is by Defendant No. 1 and it arises out of a suit for partition and accounts. The parties are near relations, the Plaintiff Sm. Saibalini Devi being the surviving senior widow of Defendant No. 1 Bhabakali Banerjee's younger brother Sibakali Banerjee who died on or about Kartick 4, 1953 B.S. Defendant No. 2 Kamalini is the surviving junior widow of Sibakali. Sibakali left the two widows as his heirs. He also left a daughter Nilima, born of the Plaintiff. Nilima was unmarried at the date of the present suit and also at the date of the trial court decree but she has since been married during the pendency of the appeal in this Court.

(2.) The suit properties are described in two Schedules, Ka and Kha, of the plaint, Ka containing the immoveable properties, Kha the moveable properties. Schedule Ka comprised 10 items which were claimed by the Plaintiff to be the joint properties of the two brothers Bhabakali (Defendant No. 1) and Sibakali, the deceased husband of the Plaintiff and Defendant No. 2, and Schedule Kha comprised the alleged joint moveables of the parties. The Plaintiff claimed a 4 as. share of all the above properties as one of the two widow heirs of Sibakali, the remaining 12 annas belonging, according to her, to Defendant No. 1 (8 as.) and Defendant No. 2 (4 as.) and she demanded partition on that footing. She also claimed accounts from Defendant No. 1 from after the death of her husband Sibakali till delivery of possession on partition. There was also a prayer in the plaint for the making of a provision for the marriage of the Plaintiff's daughter Nilima who was unmarried at the date of the suit but has since been married, as stated above.

(3.) The plaint alleged inter alia that most of the suit properties belonged to the plaintiff's father-in-law Protap Chandra Banerjee who died about the year 1912-13, leaving the two sons Bhabakali (Defendant No. 1) and Sibakali (husband of Plaintiff and Defendant No. 2) as his heirs and that, after Protap's death the rest or the remaining properties were acquired by the said two brothers who were living jointly as members of a Hindu Joint Family and the income of all the said properties was thrown into the common stock of the two brothers. The plaint further alleged that Defendant No. 1 was the Karta of the joint family constituted by the two brothers as aforesaid and, after Sibakali's death, by the present parties, and charged him with misappropriating the incomes and usufructs of the above joint properties.