MATHURAMOHAN CHAKRAVARTI Vs. LALMOHAN CHAKRAVARTI

JUDGEMENT

(1.) These two appeals are against the decision of the Subordinate Judge, Fifth Court, Dacca, dated 31 August 1936. Three brothers Lalit Mohan Chakravarti, Mathura Mohan Chakravarti and Lal Mohan Chakravarti were members of a joint Hindu family governed by the Dayabhaga School. Lalit was the eldest, Mathura the second and Lal Mohan the youngest. In 1308 B. S. corresponding to 1901 A. D. they started a business called Shakti Oushadhalay a for preparation of some Ayurbedic medicines with a small capital derived from the income of the properties left by their father and other properties acquired by them as members of a joint Hindu family after the death of their father. Within a very short time the business became prosperous and began to yield large income. Many moveable and immovable properties were acquired out of the income of the joint properties and business. Lalit died in 1324 B. S. corresponding to 1917 A. D. leaving a minor son Fanindra Mohan as his only heir. Mathura is managing the joint family property as well as the joint family business from a very long time. In the year 1926 Lal Mohan and the widow of Lalit as next friend of Fanindra instituted a suit (Title Suit No. 167 of 1926) in the First Court of the Subordinate Judge at Dacca against Mathura for partition of the joint family properties, accounts and other reliefs. On their prayer two pleaders were appointed receivers by the Subordinate Judge on 20 January 1927. Mathura appealed against this order of the Subordinate Judge to this Court. This Court concurred with the Subordinate Judge that a receiver should be appointed but directed the Subordinate Judge to appoint Mathura as receiver if he would agree. Mathura was appointed receiver with his consent by the Subordinate Judge on 11 April 1927.

(2.) The suit was subsequently transferred to the Fifth Court of the Subordinate Judge and was renumbered as Suit No. 1 of 1930. It was decreed by the Subordinate Judge on 19th September 1930. Mathura appealed against this decree to this Court. It was numbered as F. A. 253 of 1930. The parties to the appeal filed a petition of compromise in this Court. The terms of the compromise were found by this Court to be for the benefit of the minor plaintiff and the appeal was disposed of in accordance with them on 2 February, 1936. The terms of the compromise, so far as they are relevant for the purpose of the two appeals before us are as follows: (1) Plaintiffs and the defendant shall each be entitled to one third share in all moveable and immovable properties in dispute including the Shakti Oushadhalaya business, Shakti Press, money lending business, shares of companies and claims of the estate in dispute. (2) All savings during the minority of the minor plaintiff will be deposited in the Imperial Bank in the names of the two adult brothers and in the names of all three after attainment of majority of the minor plaintiff. (3) The defendant is to be absolved from all liability for accounts of the business and the other properties in suit up to 5 December 1930. (4) Shakti Oushadhalaya firm will pay Rs. 500 per month to each of the three partners within the first week of every Bengali month. There will be annual Nikash of the income of the joint properties including the business and the balance sheet is to be prepared, accepted and signed by the partners by the month of next Ashar each year and the net profit shall be divided and paid annually. (5) Income from other sources shall be divided equally as soon as the dues are realized. (6) The management of the business is to be conducted by the defendant in consultation with plaintiff 1 and plaintiff 2 after he attains majority.

(3.) While disposing of the appeal this Court made the following orders: It is necessary that we should also pass some orders relating to the discharge of the defendant from his position as receiver in respect of the properties which form the subject-matter of the suit. It appears that in para. 7, sub-para. (3), the parties have expressed their willingness that the defendant be absolved from all liabilities for accounts of the business and the other properties in suit up to 5 December 1930. As soon as the papers go down to the Court of the learned Subordinate Judge, the learned Judge will proceed to call upon the defendant to put in Court the entire amount of money which may be in his hands as representing the proceeds of the business and the properties since 6 December 1930 and up to the date on which such deposit is to be made. The learned Judge on receiving the said amount from the defendant will divide the same equally amongst the three parties, namely the two plaintiffs and the defendant, and will proceed to discharge the defendant from his position as such receiver. It should be mentioned here that the last part of this order is also passed by consent of parties.