NARENDRA NATH ROY Vs. ABANI KUMAR ROY

JUDGEMENT

(1.) The suit out of which this appeal arises is a suit for partition of joint property and for taking accounts from defendants 1 and 2 The properties sought to be partitioned have been described by the plaintiffs in three schedules attached to the plaint. Schs. Ka and Khar describe the immovable properties and Son. Ka gives details of what is termed the joint money lending business. The properties Schedule Ka are claimed to be the joint ancestral properties and those of Son. Kha the properties acquired out of the income of the former. Some of the defendants claimed some of the items of Sob. Kha as their self-acquired properties, but these claims have been negatived by the learned Subordinate Judge and no further question has been raised before us in respect of the said claims. The learned Subordinate Judge by his judgment dated 22 December, 1933 passed a preliminary decree for partition of the properties of Schs. Ka and Kha except items 3, 8 to 10, 19, 20, 37, 40, 50 to 54 and 67 of Schedule Ka. He excluded the said items from the decree on the ground that all the persons interested in the same had not been made parties to the suit. He however gave no direction with regard to the joint money lending business. Regarding the question of accounts he held that defendant 1 was the karta of a joint Hindu family consisting of the plaintiffs, defendants 1 to 5 and 7, from the year 1317 B.S. and so was bound only to account for the assets as existing at the date of the suit. He therefore directed him to submit an account of the family properties together with a statement of the assets and funds of the estate available at his hands within a month. and in default, he directed the appointment of a Commissioner to ascertain them. The plaintiffs have preferred this appeal questioning the legality of the last mentioned part of the decree. In their appeal they raise two principal and one subordinate question. The principal questions are : (1) the accounting by defendant 1 ought to be on a different principle, and (2) that it ought to have been held that defendant 1 was the manager of the joint properties and concerns from the month of Sraban 1313 B.S. The subordinate question is that the Court below ought to have held that at the time when defendant 1 assumed management he was entrusted with a reserve fund of Rs. 7,000 partly invested in loans and partly consisting of cash-money. Defendants 1 to 3 have filed a memorandum of cross- objections and although the said memorandum covers other matters, the points pressed before us in its support are that defendant 1 was never the karta of a Hindu joint family or manager of the joint properties and even if he was, the suit for accounts is barred by limitation. The points raised on the cross-objections will have to be considered first, but it is necessary to give a genealogical table and the admitted history of the family. The genealogical table is as follows:

(2.) Ganga Charan was the agent of the Nawab of Dacca at Barisal and Radha Charan a Munsiff. Hara Charan, Sarat and Lalit did not take any outside employment and remained at home. Abani is a school master at Banaripara which is near the village home of the family. Chandra Kumar was in Government service and has retired in 1919, so also Atul. Some of the plaintiffs also are in service. Defendant 6 separated in mess and property in the year 1874, he having taken 4 as share of the properties acquired in the time of Nando Lal, that is 4 as share of the properties of schedule Ka. This is evidenced by a registered ekrarnama executed on 30 November 1874. After the death of Hara Charan, his son Lalit separated in mess about 30 years ago and Sarat, the son of Radha Charan, separated in mess in the year 1291 or so. Their properties however remained joint as also the worship of the family idol. These are admitted facts. We will now consider the grounds pressed in support of the cross-objection and the second ground raised in the appeal, e. g., (a) whether defendant 1 was manager (b) if so, when did he become manager and when did he cease to be so; (d) is the claim for accounts barred by time. These points we take up together. The case of the plaintiffs is that Ganga Charan remained the manager of the properties for some time, and then Hara Charan till his death, then again Ganga Charan for a short time and thereafter Lalit was the manager up till 1312. The plaintiffs specific case is that after 1312, defendant 1 became the manager and is continuing as manager.

(3.) The gist of the defence on this part of the case is that he, defendant 1, was never the manager at any time. It was the ejmali officers who managed the affairs and the owners only looked after their work. It is the said officers and not defendant 1 who are liable to render accounts. Defendant 1, living at home, had at times to write the account papers but he had no more responsibility in the matter of management than any other person, e. g. Promoda Sundari, the mother of defendants 4 and 5, Naba Durga, the grand mother and Hemangini, the mother of the plaintiffs. This appears from paras. 8, 11, 12, 15 30 and 36 of the written" statement of defendant 1 and from para. 11 of the written statement of defendant 2.. The first point therefore is whether defendant 1 war the manager of the joint properties or the defence is true. (His Lordship after considering the evidence held that Abani was the manager of the joint properties at least after the death of Lalit and proceeded).This conclusion of ours is supported by a series of letters written by Abani and others which have been exhibited in this case. We will deal with the documents and other evidence under two periods, that is (1) from just before the death of Lalit till 6 December 1924 and (2) from after 6 December 1924 till the institution of the suit. We follow this method as one of Mr. Sen's contention is that even if Abani was the manager he ceased to be so on 6 December 1924 and the claim for accounts against him is barred by time. (His Lordship after discus-sing the documentary evidence proceeded.) We accordingly hold that defendant 1 was the manager from 1315 and his management has continued till the date of the suit. In this view of the matter, no question of limitation arises.