ANATH NATH BOSE Vs. MANMATHA NATH BASU

JUDGEMENT

(1.) This appeal is by defendant 1 who is aggrieved by the decree passed against him for Rs. 6,760 besides interest by way of re-imbursement of the amount paid by the plaintiffs which, according to them was payable by the defendant.

(2.) The facts are these. The plaintiffs and defendant 1 are successors-in-interest of one Rai Pashupati Natb Bose, since deceased, who had acquired permanent mukarari rights in villages mentioned in Schedules A and B of the plaint. The total mukarari rent payable for the tenure is Rs. 15,512-13-11 per year to the superior landlord Out of this amount, Rs. 12,462-12-0 is paid to the landlord and the balance is paid as revenue and cess to the Government, Late Rai Pashupati Nath was possessed of considerable estate comprising house and other properties in Calcutta, and zamindary and mokarari proper-ties in Bihar. The tenure, the rent of which is in question, is a part of that estate. In the year 1931 a suit for partition of the estate between the plaintiffs and the defendant was instituted on the Original Side of the Calcutta High Court. The suit was referred to arbitration of one R.C. Deb, solicitor who happened to be a relation of the parties. During the pendency of the suit and the proceedings before the arbitrator, a receiver was appointed who held possession of the properties under partition. The arbitrator made three interim awards: (i) dated 23rd February 1932; (2) dated 30th August 1933, dividing house and other properties in Calcutta; and (3) dated 8th April 1936, dividing the zamindary and mokarari properties in Bihar. By the-preliminary decree passed by the Calcultta High Court, the plaintiffs were held entitled to two-thirds and the defendant to one-third of the estate of Rai Pashupati Nath. The arbitrator was required to make the allotments accordingly. It appears that for purposes of partition, properties were valued by agreement between the parties which valuation was on the basis of gross income of the properties in question as mentioned in a document dated 26th March 1934, marked as EX. 1 before a Commissioner. This is an agreement between the parties regarding partition scheme and contains a statement of valuation of all the mauzas forming the estate of late Rai Paahupati Nath in the district of Gaya. Exhibit 1 mentions separately the villages forming the zamindary and mukarrari properties allotted to the plaintiffs and the defendants. Valuation of each village is noted against it. There is nothing in Ex. 1 to indicate as to how the outgoings in respect of these properties were to be made. It appears that after the allotments were made by the arbitrator, the receiver, who was in possession of the estate, had three separate accounts opened. In one of them he dealt with the income from the properties alloted to the plaintiffs, in the other with the the income allotted to the defendant, and in the third one with the funds collected as arrears of the period before the allotment by way of joint fund belonging to the parties. Out of this third account, he used to discharge the liabilities of the estate, and if this joint fund fell short of the requirements, he used to draw in proportion of two-thirds and one-third from the separate accounts kept for the properties allotted to the plaintiffs and the defendants. There is no difference between the parties in regard to the facts stated up to this stage.

(3.) On 2nd May 1988, the receiver was discharged and the parties got possession of the properties allotted to them.