ASUTOSH MUKHERJEE Vs. TARAPADA MUKHERJEE

JUDGEMENT

(1.) This is an appeal from a preliminary decree in a suit for partition. Defendants 1 and 2 and 4 to 8 are the appellants. There is a cross objection on behalf of the plaintiff who is one of the respondents in the appeal. The other respondent is defendant 3. To appreciate the relationship amongst the parties a reference to the following pedigree is necessary.

(2.) Kali Prosanna Mukherjee died in 1888 (=1294). Of his sons, those who figure in this case are three: Tarapada the eldest ; Annada, the second ; and Jnan-endra, the third. Tarapada's four sons are Bibhuti, Gosta, Anil and Abani, and his daughter is Lilabati. His wife Sarojini alias Sarajubala died in 1927, while this suit was pending in the Court below. Annada died in 1903, leaving his widow Kironsashi who gave birth to a posthumous son Nirmal alias Khoka, who died in 1905. Jnanendra's first wife died in 1920, and by her he had a daughter Hemnalini alias Jhanu. Thereafter Jnanendra married his second wife Pannalata, and had, by her two sons, Ashu and Aswini. He executed a will on 21 July 1923 (=5 Sravan 1330) and died on 9 September 1923. He left three daughters: Jagat Mohini, who was married to Hari Bhusan Banerjee and has three sons, Nani Bhusan. Fani Bhusan and Indu Bhusan; Sarojbasini whose husband is one Ramdas Chakra-varti alias Dakshina, and Naridasi, Ramdas and Nani Bhusan are two amongst the principal witnesses in this case: the former being P. W. 19, and the latter D. W. 8.

(3.) Tarapada is the plaintiff in this suit. Ashu and Aswini, the two infant sons of Jnanendra represented by their mother Pannalata as their guardian, are defendants 1 and 2; Defendant 3 is Kironsashi. The five executors in Jnanendra's will are defendants 4 to 8, being, respectively, No. 4 Pannalata; No. 5, Nani Bhusan, who is one of the sons of Jagat Mohini ; No. 6, Radhanath, who is son of one Umesh who was a brother of Kali Pro-sanna ; No. 7, Kishori, who is a grandson of one Gobinda who was an uncle of Kali Pro3anna; and No 8, Bhakatabatar, who is the younger brother of tha father of defendant 3 Kironsashi. The suit was based upon very simple allegations. It was alleged that the plaintiff Tarapada and his brother Jnanendra lived as members of a Hindu joint family governed by the Dayabhaga law and jointly carried on an extensive business in medicine in Rangoon, and that with the proceeds of that business they jointly acquired moveable and immovable properties and owned and possessed the same in equal shares. It was alleged further that after Jnanendra's death his widow and the two infant sons continued to live as members of the joint family, but that some wicked persons had intervened and were inciting the widow to separate in mess from the plaintiff and were managing the Rangoon business against the plaintiff's wishes and had also taken no heed of repeated demands which the plaintiff had made for partition. A decree for partition was prayed for, with a separate allotment of plaintiff's eight annas share in all joint moveable and immovable properties which were described in four schedules appended to the plaint, namely Schedule Ka, immovable properties; Schedule Kha, business at Rangoon; Schedule Ga, business in money lending ; and Schedule Gha, moveables.