JAMUNADHAR PODDAR FIRM Vs. JAMUNARAM BHAKAT

JUDGEMENT

(1.) One Moti Bhagat, a person governed by the Mitakshara law, died leaving him surviving four sons, Motni alias Sew Gobind, Earn Kissen, Sree Kissen and Balgobind. Balgovind is dead and his sons, Jamnarayan and Kanailal, are defendants 1 and 2 in the suit. The other three sons of Moti Bhagat are defendants 3 to 5. Sew Gobind's & sons are defendants 6 to 11; Earn Kissen has no male descendant and Sree Kissen's sons are defendants 12 and 13. Jodhanprosad and Bhagwandas, who are defendants 8 and 9, are two of the sons of Sew Gobind. It is admitted by both sides that the aforesaid descendants of Moti Bhagat form a joint Hindu family governed by the Mitakshara law.

(2.) A business was carried on at Chaibassa and other places under the name and style of "Jodhanprosad Bhagwandas Firm." Whether that business was a joint family business of the descendants of Moti Bhagat or was a partnership business in which only some of the descendants of Moti Bhagat were inter, posted is an important point in the case That point will have to be decided on evidence at a later stage of this suit. As the suit has been dismissed on a preliminary issue by the learned Subordinate Judge on the basis that the business carried on under the name and style of "Jodhanprosad Bhagwandas Firm" was a joint family business we have to proceed on that footing also. For convenience we would use the expression "Jodhan Prosad Bhagwandas Firm" to designate the joint family business carried on under that assumed name.

(3.) The plaintiffs are partners of a firm carrying on business under the name and style of "Jamunadhar Poddar Firm." There were business dealings between them and "Jodhanprosad Bhagwandas Firm." For their dues on those business dealings they sued the "Firm of Jodhanprosad Bhagwandas" in the Court of the Deputy Commissioner at Chaibassa, and recovered a decree on 23 December 1932, for Bs. 8691. That decree was affirmed on appeal by the Patna High Court. In that suit Jodhanprosad and Earn Kissen appeared as "Partners of the firm called Jodhanprosad Bhagwandas." That decree was transferred for execution to the District of Murshidabad and an execution case, being Money Execution Case No. 40 of 1937, was started in the High Court of the Subordinate Judge of Berham-pore against the "Firm Jodhanprosad Bhagwandas" and against Jodhanprosad and Bam Kissen personally following the procedure laid down in Order21, E. 50, Civil P.C. A house in Dulian, which is the subject- matter of this suit, was attached and at the court sale which followed the decree-holders, who are the plaintiffs in this suit, purchased the same for Rs. 6000 on 1 October 1937. The sale was confirmed on n April, 1938 and the writ for delivery of possession was issued on 12th April 1988 but no possession could be taken by the decree-holders purchasers for the reasons a which we would presently notice. This house has been found to be joint family property of the descendants of Moti Bhagat, whom we have mentioned in first part of our judgment.