RAMDHONE BULAKIDAS Vs. KEDARNATH MOHATA

JUDGEMENT

(1.) This suit turns upon a question of lis pendens. The short facts are as follows : Counsel were each good enough to hand me a list of dates. That supplied to me on white paper, I think by Mr. Chatterjee, is in tabular form, and may remain with the record as showing in detail the position with which I have to deal. I only propose to state the essentials. We are concerned with four suits : (1) Suit No. 31 of 1924 filed on 3 January 1924, which has been referred to as the partition suit, although in point of fact it was filed by the plaintiff for a declaration that the property belonged wholly to him. It became in substance, owing to the rejection of the plaintiff's contention, a suit for partition of the properties mentioned in Schedule A to the plaint : see pages 5, 7, 17 and 19 of the agreed brief of documents. These references show that the defendant did not accept the list of properties in Ex. A as a complete list of the properties to be partitioned. The premises with which we are concerned in this suit, No. 6, Sikdarpara Lane, is the first item in Ex. A; (2) Suit No. 748 filed on 11 March 1924 being a suit for dissolution of partnership; (3) Suit No. 967 of 1929 filed on ,10 May 1929 being a mortgage suit upon the mortgage of a half share of No. 6, Sikdarpara Lane; (4) Suit No. 1615 of 1933 filed on 20 July 1933 being a declaratory suit for the purpose of establishing that the mortgage referred to prevails over the rights of the defendant Radha Bai under a certain order made in Suit No. 1, the partition suit.

(2.) The following short history will further explain the nature of the suits. Radhakissen and Gopikissen, two brothers governed by the Mitakshara School of Hindu law, carried on a certain business, which I will call Y. Their shares in the partnership were 9 and 7. I will call Radhakissen and Gopikissen, and after Gopikissen's death his widow Radha Bai, respectively A and B. Gopikissen left a will under which his widow inherited. A and B out of the profits of Y purchased certain properties, in particular the properties set out in Schedule A, which I will call X. The immovable properties are X and the business is Y. The first point to notice is that X and Y are distinct. X was bought with the profits of Y, it is true, and the business Y might equally well have been financed from the income of the properties. But they are distinct classes of property. The property X is not the assets of the business Y. No such case has been made.

(3.) The next stage is that A in Suit No. 1 alleged that he and B are co-parceners in X, and that it is joint family property and his prayer is for a declaration to that effect, which would exclude the widow of Gopikissen, whom I will now call B, from any right in X. The suit was tried by Chctzner J. who held against A to the effect that there had been already a partition between A and B, and that at the time of Gopikissen's decease A and B were co-owners with equal shares in the immovable property X. As a result, the widow of Gopikissen, B, was entitled to a half share. A preliminary decree was passed in that suit for partition in favour of the defendant B. That preliminary decree was dated 10 December 1924. It declared A and B each to be entitled to a half of X and directed the usual enquiries, including an inquiry as to what the joint properties consisted of : see p. 65 of the agreed brief. Then came the proceedings before the Commissioner, Mr. Remfry. But before these were entered upon, Suit No. 2, the partnership suit, had been filed by B against A. This was a partnership suit for dissolution of the trading partnership Y. Before those proceedings in No. 2 had culminated in a preliminary decree, the enquiry in the partition suit was taken up, and on 11 September 1925, and this is a fact strongly relied upon by the plaintiff in this suit-at a meeting before the Commissioner the attorney for B mentioned the pendency of the partnership suit, and there is noted an agreement to this effect that the "subject matter of Suit No. 2, the partnership suit, should be excluded for the present". On 2 March, 1926 the preliminary decree in the partnership suit was passed. In this suit again, A Radhakissen failed. He had attempted to set up a discharge by Gopi-kissen prior to his death. He failed, and an ordinary preliminary decree for winding up the partnership was passed and accounts were taken.