GIRINDRA NATH MUKHERJEE Vs. SOUMEN MUKHERJEE

JUDGEMENT

(1.) The judgement we render now governed two appeals being F.A. No. 525 of 1974 and F.A. No. 555 of 1974. Two cross objections have also been filed. F.A. No. 525 of 1974 arises out of the judgement and decree in T.S. No. 65 of 1971 (previously numbered as T.S. No. 107 of 1957) of the 7th Court of Subordinate Judge, Alipore. F.A. No. 555 of 1974 arises out of the judgement and decree in T.S. No. 66 of 1971 (previously numbered as T.S. No. 115 of 1959) of the same court. It may be mentioned that the learned Subordinate Judge heard both the suits analogously and disposed of them by one common judgement. Title Suit No. 65 of 1971 was dismissed on contest. Title Suit No. 66 of 1971 was decreed in part on contest. Manindra Nath Mukherjee was the appellant in F.A. No. 525 of 1974. The heirs of Sidheswari Debi have filed the appeal, F.A. No. 555 of 1974.

(2.) Title Suit No. 65 of 1971 was filed by the plaintiff, Manindra Nath Mukherjee, for partition of the suit properties and for accounts. That is the main suit and the other suit, namely Title Suit No. 66 of 1971, can be legitimately called and off spring of the first suit. In Title Suit No. 65 of 1971, the plaintiff, Manindra Nath Mukherjee, alleged that the suit properties were purchased by his father with his own money. Late Nanilal Mukherjee was the father of the original plaintiff and the original defendants Nos. 1 to 4 and the husband of the original defendant No. 5, late Sidheswari Debi. It is an admitted case that late Nanilal Mukherjee married twice. His first wife, Sarojini, died at a premature age. Then Nanilal married the original defendant No. 5 in 1903. According to the plaintiff, Sailendra the defendant No. 1 was then only three years old. There is a little divergence on this paint and it is that according to the original defendant No. 1, he was then six years old. Be that as it may, according to the plaintiff, Manindra, Nanilal purchased the property of 1, Lovelock Street on 9-9-12 with his own money, in the benami of the original defendants Nos. 1 and 5 viz., Sailendra and Sidheswari. In 1912, as per account of the plaintiff, the defendant No. 1 was then only twelve years old and a student of class-IV. It was pleaded that neither the defendant No. 1 nor the defendant No. 5 had any means to purchase the property. Then again, in 1915, the plaintiff's father constructed a house, partly two storeyed and partly three storeyed, with his own money, as stated by the plaintiff. Late Nanilal retired in 1931 as Manager of the Jail Depot. The further account of the plaintiff was that to meet the marriage expenses of his daughter and also to establish a deity somewhere. Nanilal had to mortgage the property, bur as the title deeds stood in the names of Sailendra and Sidheswari, they were made to execute the mortgage deeds. But the plaintiffs father also joined in the mortgage deeds. The plaintiff averred that Nanilal had taken the entire money raised by mortgaging the property. In 1932, a strip of land out of 1/1, Lovelock Street was again purchased in the names of the defendants Nos. 1 and 5. Here also, the plaintiff mentioned that Nanilal himself had purchased the property in the benamis of Sailendra and Sidheswari. The properties of the Lovelock Street are the 'A' Schedule properties of the plaint. The 'B' Schedule properties are the properties in Palpara, District Nadia. They were acquired by Nanilal Mukherjee with his own money, but in the names of Sailendra and his othersons. The plaintiff asserted that Nanilal remained in possession of those properties. It is not disputed that Nanilal died in 1944.

(3.) Some mortgage deeds were executed. Haridas Dey, a mortgagee, filed Title Suit No. 132/50 against the defendants Nos. 1 to 5 and obtained a compromise decree for Rs. 8,000/-. The plaintiff averred that nothing was explained to the defendant No. 5. Then the legal representatives of one Durga Das Chatterjee. another mortgagee, brought T.S. No. 156 of 1951 (re-numbered T.S. No. 47 of 1952). The defendant No. 1 paid off the entire mortgage dues, After that, the defendant No. 1 filed a contribution suit against the defendant No. 5 and got a decree for Rs. 4,494/-. The defendant No. 1 it was stated also put the decree into execution. The plaintiff claimed that on the death of Nanilal, himself and the defendants Nos. 1 to 5 got one-sixth share each in the suit properties.