JITENDRA NATH SUR Vs. AMARENDRA NATH SUR

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff and defendants 2 to 14 and it arises out of a suit for partition and accounts commenced by the plaintiff in respect of properties both moveable and immovable left by his father, one Surendra Nath Sur, who was a Hindu resident of Maniktala within the jurisdiction of the Alipore Court and died on 13 January 1935. It appears that Surendra, though not born of rich parents, did acquire considerable properties in his lifetime. He started his life as a maker of gold ornaments and then took to the more profitable business of purchasing and selling lands and houses and increased his wealth to a great extent by lending money at high rates of interest on pledge of ornaments and jewellery. He married three wives in succession. By his first wife he had an only son named Amarendra, who is defendant 1 in the suit and the sole respondent in this appeal. The second wife died soon after her marriage leaving a daughter named Bidyut Lata who was married during the lifetime of Surendra and does not figure as a party in this litigation at all. The third wife Annapurna who survived her husband is defendant 10 in the suit. By this wife Surendra had nine sons and four daughters. The eldest of these sons, Jitendra, is the plaintiff in the suit, the other sons being defendants 2 to 9, while the four daughters who are all unmarried figure as defendants 11 to 14. The plaintiff Jitendra claimed a 1/11 share of the properties, moveable and immovable left by Surendra which were described in the various schedules attached to the plaint of these, two items of immovable property--one a vacant plot of land in the city of Calcutta being premises No. 227B, Upper Circular Road, and the other a mourashi mokarari Jalkar named Beri Bangor situated at Gobardanga in the District of Jessore, which were described as items (D) and (B) of Sen. A to the plaint -- did, according to the plaintiff, belong to Surendra and were acquired with his own money though the purchases were made in the benami of Amarendra, defendant 1. Of the moveable properties again in regard to which partition was prayed for, item (G) of Schedule G and items (D), (G) and (H) of schedule D stood in the name of Amarendra. The first was a loan on an equitable mortgage purporting to be advanced by Amarendra to Surendra Nath Dutta, The second was the amount, due under a decree made by the Original Side of this Court in Suit No. 1840 of 1930, on the basis of a promissory note executed by one Prafulla Kumar Sur in favour of Amarendra. Items 8 and 4 were monies due on promissory notes one of which was executed by Butto Kristo Neogi and the other by Prafulla Kumar Sur and in both of them Amarendra figured as the ostensible lender. The plaintiff's case was that Amarendra had no property of his own and all these monies belonged to Surendra and were advanced by him in the name of Amarendra. The plaintiff further claimed accounts from Amarendra on the allegation that the latter being the eldest of the brothers managed the joint estate as karta of the family and had not only collected large sums of money in satisfaction of debts and decrees but also realised rents in respect of immovable properties. Lastly, the plaintiff prayed for an order of the Court setting apart appropriate sums of money for the maintenance and marriage expenses of his four unmarried sisters who were impleaded as defendants 11 to 14 in the suit.

(2.) The suit was contested by Amarendra, defendant 1 alone. The other defendants did not file written statements though some of them prayed for separate allotment of their shares in the joint property. The material defence raised by defendant 1 was of a three, fold character. His first and main contention was that the two items of immovable property as well as the decree and loans specified in the plaint schedules which stood in his name were his own self acquisitions. They did not appertain to the estate of late Surendra Nath Sur and were not divisible amongst his heirs. In the second place, his case was that there were several other properties which belonged to Surendra and hence formed the joint properties of the parties though they were not included by the plaintiff in his plaint. These properties were set out in Schedule 2 attached to the written statement and consisted of the following items: (a) premises NO. 1/4B, Kanta Pukur Lane in the city of Calcutta, purchased by Surendra in the name of the plaintiff; (b) undivided half share of a plot of maurashi mokarari garden together with pucca structures situated at Bally in the district of Howrah; (c) money due on a promissory note executed by Phani Bhusan Bose, Solicitor, in favour of Surendra Nath Sur, the money being realised by the plaintiff; (d) a sum of Rs. 1601 obtained by the plaintiff Jitendra by assignment of an agreement for purchase of a plot of land in Calcutta, the agreement being really entered into by Surendra during his lifetime in the name of Jitendra and the earnest money paid by him; (e) amount due on a promissory note executed by Sailaja Nath Roy in favour of Surendra on hypothecation of certain jewellery and ornaments; (f) ornaments and jewellery hypothecated by various debtors which became the property of Surendra or still remained as pledged articles; (g) residue of the stock in trade of the jewellery and goldsmith business of Surendra still lying in the hands of the plaintiff; (h) furniture of the goldsmith shop; and (i) utensils and furniture for domestic use.

(3.) It was further averred by the defendant in this connexion that a sum of Rs. 9000 which was due under three life insurance policies of Surendra Nath Sur and which were paid after his death to Annapurna as being the nominee mentioned in the contracts of insurance, could not be legally claimed by her and this money really appertained to the estate of Surendra Nath Sur and was liable to be partitioned amongst his heirs. The third material defence taken by defendant 1 was that he never assumed the position of a karta in the family and never managed the ejmali estate; on the other hand, it was Jitendra, the plaintiff, who got hold of the account papers, cash and jewellery after the death of the father and it was he who collected the rents and profits of the joint estate. The entire liability to account was thus on the plaintiff and not on defendant 1 who was literally turned out of the house by Jitendra and his brothers. The suit was heard by the Subordinate Judge, third Court, Alipore, and by his judgment dated 25 April 1941, a preliminary decree for partition and accounts was passed by the learned Judge. The findings arrived at by him on the points in controversy between the parties are as follows: (A) :- The two items of immovable property described in paras. (D) and (E) of Schedule A to the plaint and which stood in the name of Amarendra were held to be his self-acquired properties. With regard to item (B) which is the Jalkar property, it was further held that the plaintiff's claim in respect of the same was not entertainable in view of Section 66, Civil P.C. The loan advanced to Surendra Nath Dutta on equitable mortgage wag held to belong to Amarendra while in regard to the other loans and decree which were referred to in paras. (D), (G) and (H) of Schedule D to the plaint, it was held that the money belonged to Surendra and not to defendant 1. (B):--Item (a) of schedule 2 of the written statement was admitted by the plaintiff at the close of the hearing of the suit to be the property of his father though the document was in his name and it was found by the Court to be joint property and as such it was held liable to partition. Item (b) was excluded from the suit as persons other than those who were parties to this suit were interested in it. Items (c) and (d) were found to be joint property. Regarding items (e) to (i) which included pawned jewellery as well as furniture and stock in trade, the Court held that these matters should be enquired into by an accounts commissioner as it was not possible without proper investigation of accounts to ascertain the nature and extent of these properties. As regards the sum of Rs. 9000 due under the life insurance policies of Surendra, the Court found that the money was paid to Annapurna and no part of it was retained by Amarendra. Annapurna, however, as a nominee under the policies was not legally entitled to the money which belonged to all the heirs of Surendra. It was held therefore that this money was available for partition amongst the co-owners. (c):--On the question of liability to account, the Subordinate Judge was of opinion that the plaintiff Jitendra took possession of the account books, the ornaments, jewellery and the keys to the chest and almirahs after the death of Surendra. It was Jitendra who looked after the construction of premises No. 1/4B, Kanta Pukur Lane and realised rents from the tenants occupying the various rented premises. Amarendra was also found to have made some collections; and he was held to have taken part in the succession certificate proceedings and the sradh ceremony of Surendra along with the plaintiff. Both the plaintiff and defendant 1 were held liable for accounts in respect of collections and disbursements made by each one of them. The preliminary decree was made by the Subordinate Judge on the basis of these findings. The plaintiff and defendant 1 were held entitled each to 1/10th share of the properties found to be joint and a survey commissioner was directed to be appointed for carrying on the partition. It was further directed that a separate commissioner would be appointed for taking accounts and investigating the matters relating to pawned jewellery and other things mentioned in the judgment. It is against this decree that the present appeal has been filed by the plaintiff and all the defendants except defendant 1. Defendant 1 has preferred a cross objection attacking that part of the decree which is against him.