AJIT NARAIN CHATTOPADHYA Vs. ACHINTA NARAIN CHATTOPADHAYA

JUDGEMENT

(1.) Three questions emerge for determination in these two appeals which arise out of a suit for partition of the estate of Rakhal Kristo Chattopadhaya, an inhabitant of Howrah, and the father of the plaintiff and two defendants to the suit. One is a question of fact, and the other two are questions of law. The question of fact arises out of Issue No. 6 which runs as follows: Did the defendant No. 2 advance any money to his father Babu Rakhal Krishna Chattopadhaya for the, acquisition and subsequent construction and repair of the Benares house. If yes, what amount.?

(2.) The questions of law may be formulated thus: (1) Is the debt due by defendant No. 2 from the father barred by the statute of limitations ? (2) Whether defendant No. 2 is to get 2/3 of the money advanced by him to his father although such debt has become barred by the statute of limitation.

(3.) On the question of fact the Subordinate Judge, has come to the conclusion that the amount advanced to the father was Rs. 10,900 and that the plaintiff and defendant No. 1 are liable to pay to defendant No. 2 in equal halves. The Subordinate Judge has reached the conclusion that the liability of the plaintiff and defendants to discharge their father's debt arose after their father's death which happened in October 1926, and as defendant No. 2 put in his written statement within 6 years of that event the debt is not time-barred. The relief, said the Judge below, claimed by the defendant No. 2 is a sort of equitable set off and in that case the question of limitation does not arise. The Subordinate Judge has passed a preliminary decree for partition and has directed the Commissioner to take into account the sum of Rs. 7,266 which is payable by defendant No. 1 and plaintiff in equal halves to defendant No, 2. Hence the two appeals have been brought by defendant No. 1 (No. 266 )and plaintiff (No. 284) and the main controversy in these two appeals centres round the three questions indicated at the outset of this judgment.