ELOKESHEE DASEE Vs. KUNJABIHARI BASAK

JUDGEMENT

(1.) This is a somewhat curious case and raises debatable points of law. It appears that the present appellant was the plaintiff in a suit No. 199 of 1878. That was a partition suit and it had reference to six items of property mentioned in the decree, which was passed therein. The decree was dated 2 July, 1879 and was an ordinary decree for partition. The effect of it was to declare that the plaintiff was entitled to one-fourth interest in all the properties and that two other persons, now dead, were entitled to six-sixteenths each. It seems that, after that decree was passed, no further steps were taken beyond the appointment of a commissioner, who died in or about 1896, having done nothing towards the execution of the commission. In July 1932, that is some 53 years after the preliminary decree, the plaintiff applied to the learned Judge on the original side, by notice of motion, asking, among other things, that certain names of parties defendants to the suit, now dead, be struck out and the name of Kunjabihari Basak be substituted in their places, for the appointment of a commissioner of partition to partition certain properties which were properties Nos. 1 and 2 in the schedule to the preliminary decree under the names of premises Nos. 27 and 28, Charhakdanga Street, but which are now properties in a street called Tagore Castle Street.

(2.) It may be desirable to state here that the third property in the schedule to the decree had been acquired by the Calcutta Improvement Trust and that the parties entitled got their respective shares. The same is true of the fifth of the properties mentioned in the schedule. As regards the fourth property mentioned in the schedule it appears that partition suit No. 1162 of 1915 was brought by the present respondent, Kunjabihari Basak, in which the present appellant was a defendant. Proceedings for partition of this property are still pending in this suit of 1915. As regards the sixth property in the schedule, what appears to have happened is that, in the eighties, an agreement was entered into, dated 18 March 1888, according to which the appellant was at liberty to live in this property and was to get an allowance of Rs. 5 a month. It seems that, at some time, she purported to sell the whole interest in that property and that, under that transfer, which as regards the three-fourths share was without title, the respondent Kunjabihari has bought in one-fourth share of the plaintiff, so that he is the sole owner of this property.

(3.) The plaintiff in this application makes no claim to be interested in any property except Tagore Castle Street properties, items Nos. 1 and 2 of the schedule to the old decree. During the fifty years, that have elapsed since the decree was passed, all the other parties have died and, in one way or another, if the matter is traced out, it would appear that the respondent, Kunjabihari, can make title to the three-fourths share, which does not belong to the plaintiff. In these circumstances, after so long an interval, and after it is clear that parties had come to an agreement, under which the commission of partition was not to be carried out, the questions that were debated before the learned Judge were, first of all whether it was open to him in law to allow the plaintiff to bring in the respondent and to proceed under the decree as regards this single property, and secondly whether, if it was open in law, the Court had a discretion and ought to exercise the discretion in the plaintiff's favour. It was contended, on the part of the defendant, that the plaintiff's application was incompetent, because long ago the suit had abated as regards the deceased defendants and it was also said that she was out of time to set aside the abatement. It was further contended that the relief, that she sought, was really a relief by way of an order to enforce the decree of 1879 and that this was also barred by limitation. The learned Judge has not been satisfied that either of these answers is available to the respondent but he has come to the conclusion that the Court has a discretion in the matter and that, in the circumstances of the present case, it would be an improper exercise of discretion to allow the plaintiff's claim.