NALINAKSHYA GHOSAL Vs. RAGHUNATH GHOSAL

JUDGEMENT

(1.) This is an appeal by the plaintiff against a decision of the Subordinate Judge of Burdwan, dated the 18 March, 1921, dismissing the suit. The suit was one for an account and for partition and the main ground upon which the Subordinate Judge dismissed the suit was that there had been a previous partition and that as to certain properties which had been acquired out of joint funds subsequent to the previous partition there could be no decree for partition in the present suit as ail the joint properties had not been included. The Subordinate Judge held that there was a further bar to the suit as the plaintiff was not in possession of any of the joint properties and that as the suit was one for partition and not for recovery of possession and partition the plaintiff could get no relief in the present suit.

(2.) The material facts are as follows: One Kenaram Ghosal had by his wife Hara Sundari, five sons Madhu Sudan, Hari Nath, Troilakhya, Raghu Nath and Nabin Gopal and a daughter Bindu Basini. Hari Nath predeceased his father Kenaram, and died childless. Kenaram died in 1859 leaving him surviving his widow Hara Sundari and four sons Madhu Sundan, Troilakhya, Raghunath and Nabin Gopal. Nabin Gopal died unmarried in 1863 or 1864 leaving his mother Hara Sundari as his heir.

(3.) Madhu Sudan died in 1277 but prior to his death arrangements were in progress for an amicable partition between himself and his brothers Troilakhya and Raghunath. The partition was not completed at the time of Madhu Sudan's death but it was completed by his two sons, who were his heirs, and on the 25 June, 1872, Madhu Sudan's sons completely separated from Troilakhya and Raghunath and took their share of the joint family properties to which they were entitled as heirs of Madhu Sudan. Certain properties which Hara Sundari had inherited from her father Shiba Prasad Roy and also the properties which she inherited from Nabin Gopal were also included in the partition although Hara Sundari was still alive and did not die until 1883, but it has been found that this was done with her consent and the finding is not disputed in this appeal and has been accepted by both parties subject to a contention raised by the respondent to which I shall presently refer. One question which arises in this appeal is whether the partition of the 25 June, 1872, effected a separation between Troilakhya and Raghunath. The respondent contends that this was so and the Subordinate Judge has so found but the appellant contends that they remained joint after the separation of Madhu Sudan's branch. It is common ground that after the separation of Madhu Sudan's sons, who removed to Sijua, the village of Hara Sundari's father, Troilakhya lived jointly with Raghunath and Hara Sundari at Rautgram, the ancestral home, but the respondent contends, and as already stated the Subordinate Judge has so found that their properties were separate and that they were joint in mesa alone. It has, however, been found by the Subordinate Judge that they had some joint funds and joint cultivation. Troilakhya died in March, 1882, leaving two widows surviving him. He left a Will made on the day of his death (15 Falgun 1288 B.S.). It was addressed to his brother Raghunath whom he appointed executor. The Will states that the testator had been living in joint mess with Raghunath and had been performing the seba of the deities, the ceremonies of the ancestors as well as the daily and occasional rites from the proceeds of all that he had jointly with Raghunath, namely, lakheraj and mokarrari jamas, tanks, ghars, doors, pucca buildings and other movable and immovable properties, paddy, cash money, money-lending business, etc. The testator authorised his elder wife Sm. Sarada Sundari Devi to adopt a son to him and directed Raghunath to cause her to adopt his (Raghunath s) second son, the plaintiff Nalinakshya. The testator then directed his executor to look after, manage and settle the properties in the same way as they had been managed during their jointness until the adopted son attained his majority. The testator then provided that his adopted son after attaining majority and receiving to his satisfaction properties, etc., namely, the properties left by the testator should as his representative, enjoy and possess the same, being invested with the right of sale and gift.