BIRAJ MOHAN GHOSE Vs. ABANI KANTA GHOSE

JUDGEMENT

(1.) This is an appeal against a preliminary decree for accounts passed by the Fourth Court of the Subordinate Judge, Dacca in a suit for partition and accounts. In the suit, the plaintiff claimed accounts-from defendant 1, his share of the rent and profits of the properties mentioned in Schedule Ga of the plaint hereinafter referred to as Bogi, on the ground that the collection of the rent and profits of the said properties-was being made under the management and control of defendant 1. The relation ship of the parties to the suit is shown in the following genealogy:

(2.) Bogi was acquired by Kumudini and defendant 1 for the benefit of the two branches of the family. The plaintiff, defendants 3 to 5 and defendant 6, are owners of eight annas share of the property while defendants 1 and 2 and 7 to 9 are the owners of the remaining eight annas share. Defendant 1 died during the pendency of the suit and his sons, defendants 1 Ka to 1 Ga, were substituted in his place. Before his death defendant 1 filed a written statement. His defence in substance was as follows : The collection of the rent and profits was entrusted to a joint Tahsildar named Srish Chandra Mitra with the consent of all the cosharers up to Chaitra 1330 B. S. After his death Dharanidhar Sen was appointed to collect eight annas share of the rent and profits belonging to the plaintiff and his brothers for the year 1331B. S. Thereafter the plaintiff and his brothers had been making collection of their eight annas share, through their Tahsildar and defendant 1 used to make collections of the remaining eight annas share of defendants 1, 2, 7, 8 and 9. Plaintiff's claim for account is vague and indefinite as there is no mention in the plaint from which year to which year account is claimed. The plaintiff's claim is also barred by limitation.

(3.) Defendants 1 Ka to 1 Ga also filed a written statement. They denied their liability as well as the liability of their father to account. They also pleaded that the suit for accounts was not at all maintainable against them. Defendants 3 and 5 filed a written statement stating inter alia that the parties separated in mess long ago and that thereafter they had been making separate collections from all the joint mehals by separate officers in proportion to their respective shares. The learned Subordinate Judge after considering the evidence in the case arrived at the following conclusions : (a) That defendant 1 has been managing Bogi as an agent of the plaintiff and was realizing rent and profits of the plaintiff's share as such agent and was thereafter liable to render accounts for the same. (b) That defendants 1 Ka to 1 Ga were not liable to render accounts. (c) That they are liable to pay the money due to the plaintiff out of the assets of defendant 1 in their hands. He accordingly directed the defendants to produce collection papers in Court in order to enable the plaintiff to take copies thereof. He also directed that a commissioner should be appointed to determine the amount due to the plaintiff from defendant 1 in respect of Bogi, first, by reference to the papers produced and next by local enquiry, if necessary. Hence this appeal by defendants 1 Ka to 1 Ga.