GITA MUKHERJEE Vs. PRABHAT KUMAR DUTTA

JUDGEMENT

(1.) Two appeals-F.A. 33/82 and F.A. 72/82 arise out of the judgment and decree in T.S. No. 14/79 of the 4th court of the Subordinate Judge, Alipore. F.A. No. 33/82 has been filed by the defendants in T.S. No. 14/79 Sri Prabhat Kumar Dutta and Sri Sanat Kumar Dutta. F.A. No. 72/82 has been filed by Smt. Gita Banerjee, the plaintiff in T.S. No 14/79.

(2.) The Plaintiff in T.S. No. 14/79 is the sister of the defendants. It is not disputed that the plaintiff and the defendants are the daughter and the sons respectively of Late Lalit Mohan Dutta and Sudhabala Dutta. It is also not disputed that the mother of the plaintiff and the defendants, Sudhabala Dutta died on the 31st day of Aug., 1966, leaving the parties in the suit and her husband, Late Lalit Mohan Dutta. The plaintiff claims that upon the death of Sudhabala, she,acquired 1/4th interest in the properties left behind by her, namely the 'A' Schedule properties. Then, on the 27th day of April, 1973, Late Lalit Mohan Dutta also died intestate at Premises No. 40B, Bakul Bagan Road, Calcutta. The substance of the plaintiff's case is that she has acquired 1/3rd interest in all the properties mentioned in the respective Schedules, by successive devolutions. The plaint Schedule is to some extent clumsy : 'A' Schedule properties are described as the properties left behind by Sudhabala Dutta and the 'B' Schedule properties are described as the plaintiff's ultimate share in all the properties. Notwithstanding that, however, the position is clear that by natural and successive devolution, the plaintiff claims ultimately 1/3rd interest in all the properties left behind by her parents. She prays for partition of the properties and also for accounts.

(3.) The defence case is mainly devoted to denial of the existence of the properties. As regards the Item No. 1 of the 'A' Schedule properties, the defence case has been that the said properties were acquired by the Land Acquisition Department and an award has been made in the name of the mother. The next item of the 'A' Schedule properties, namely Item No. 2, in regarding the gold, diamond and other jewelleries, said to be valued at Rs. 50,000.00. As to that, the defence is that the defendants have no knowledge of the same. As a matter of fact, it is stated by the defendants that after the death of the mother, it was the plaintiff herself who used to handle the ornaments etc. and she is in a position to give an account regarding such articles. Then regarding the house property at 40B, Bakul Bagan Road, Calcutta, it is stated that the same, is much less than one bigha. One bakery, "Sudhansu Bakery", a partnership firm is said to be occupying the ground flour of the premises. Item No. 3 of the 'B' Schedule of the plaint is described as the 50% share in a firm, Dey and Dutta Bros. The existence of that firm is denied in the written statement. With regard to the Life Insurance Policies referred Jo in Item No. 7 of the 'B' Schedule of the plaint, the defence case is that two policies were surrendered towards the payment and/or adjustment of the estate duty of the deceased father and one policy was a paid up policy and the matter is pending with the Life Insurance Corporationt The existence of Unit Trust of Rs. 2,000.00 and of Rs. 3,154 67p. as Bank account in the Central Bank of India is also denied. According to the defendants, there is also non-existence of 50 gold mohurs and they denied any knowledge regarding that.