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High Court Of Calcutta
P. K. BANERJI, B. N. MAITRA
JUGAL KISHORE KUNDU (DECEASED BY L.R.s) - Appellant
Versus
NARAYAN CHANDRA KUNDU - Respondent
A. F. O. D. 491 Of 1975
Decided On : 02/02/1982
PARTITION - Joint Family Property - Acquisition of Property - Benami - Presumption of Joint Family - Burden of Proof - Admission - Estoppel - Res Judicata.
Fact of the Case:
Plaintiff alleged that his brothers, defendants 1 and 2, were his brothers and that they lived in a joint family. He claimed that their father, Rasamoy, had purchased the disputed property in the name of his daughter-in-law, Monorama, as a benamidar. After Rasamoy's death, the plaintiff and defendant 1 shifted to the disputed property. In 1967, they separated in mess but remained in joint estate. The plaintiff filed a suit for partition and for taking accounts regarding the disputed property.
Finding of the Court:
The court found that the plaintiff failed to prove that the disputed property was acquired by Rasamoy as a benamidar. The court held that Monorama was the real owner of the property and that she had acquired it with her own money. The court also found that the plaintiff had made admissions in previous affidavits and in a suit filed in the Sealdah Court that Monorama was the owner of the disputed property. The court held that these admissions were clear and unambiguous and that they estopped the plaintiff from claiming any interest in the property.
Issues: 1. Whether the disputed property was acquired by Rasamoy as a benamidar. 2. Whether Monorama was the real owner of the property. 3. Whether the plaintiff had any interest in the property.
Ratio Decidendi: 1. The court held that the plaintiff failed to discharge the burden of proving that the disputed property was acquired by Rasamoy as a benamidar. The court noted that there was no presumption of joint family property in the case as Rasamoy was alive when the property was acquired. The court also noted that the plaintiff had failed to prove that the brothers had any joint family property which could have served as a nucleus for the acquisition of the disputed property. 2. The court held that Monorama was the real owner of the property. The court noted that she had purchased the property in her own name and that she had constructed a house on the property with her own money. The court also noted that the plaintiff had made admissions in previous affidavits and in a suit filed in the Sealdah Court that Monorama was the owner of the disputed property. 3. The court held that the plaintiff had no interest in the property. The court noted that the plaintiff had failed to prove that he had contributed to the acquisition or construction of the property. The court also noted that the plaintiff had made admissions in previous affidavits and in a suit filed in the Sealdah Court that he had no interest in the property.
Final Decision: The court allowed the appeal, set aside the judgment and decree of the lower court, and dismissed the suit.
( 1 ) THE plaintiff has alleged that defendant No. 1, Jugal Kishore and defendant No. 2, Bhupendra, are his brothers. Their father, Rasamoy Kundu, lived at Ichhapore in the district of Jessore, which is now in Bangladesh. He was governed by the Dayabhaga school of Hindu law. On the 21st Feb. 1948, he died leaving behind those three sons as his only heirs. His wife had predeceased him. He was very well off, owned many properties and extensive business. He constructed a godown and carried on jute business therein at Langal Bandh Bazar near his native village in the benami of Monorama Kundu, Jugal's wife. In 1946 a riot broke out in Bengal and so Rasamoy wanted to have a house in Calcutta. He sent Jugal to purchase land in Calcutta for that purpose. On the 23rd Dec. 1946, a deed of agreement was thus executed regarding the suit land. On the 16th Jan. 1947, a kobala was executed in respect of that property. Though both the documents stood in his daughter-in-law Monorama's name, she was merely his benamidar. After the purchase, he began to raise building on that land, but 'he construction was not completed during his lifetime. He and his three song lived in a joint family. Jugal was the karta. Rasamoy left many properties and business. In 1950, there was a communal riot in East Pakistan. Shortly, thereafter, the plaintiff and Jugal shifted from East Pakistan to the disputed property. Bhupendra was then unmarried and he used to live in East Pakistan. From time to time he would come to Calcutta The disputed property belonged to the joint family and the three brothers had one-third share each therein. In 1967, they separated in mess, but are still in joint estate. A fire broke out in Langal Bandh Bazar jute godown in 1951 and 1952. A sum of Rupees 130,000. 00 was received from the Insurance Company as compensation, That amount forms part of the joint estate of the brothers. Jugal falsely filed Title Suit No. 340 of 1967 in the First Munsif's Court, Sealdah, for the plaintiff's eviction on the bogus ground that he was a tenant in respect of one room in the disputed house under him and his children. But he lost that case up to the appellate court. Monorama is dead and the pro forma defendants are her heirs. The suit is for partition and for taking accounts also regarding the disputed property.
( 2 ) THE defendant No, 2 filed a written statement supporting the plaintiffs version.
( 3 ) THE defendant No. 1 and pro forma defendants Nos. 3 to 6 and 8 and 9 filed a written statement denying the plaintiff's allegations. They allege that Rasamoy separated his three sons and distributed all his assets in 1940 or so. After his death nothing came in the hands of Jugal. There was no existence of any joint family or joint family property. Monorama had considerable money and she acquired the porperty in question with her own money. Thereafter, she constructed a house on that land with her own money. The godown at Langal Bandh Bazar belonged to her. Narayan (plaintiff) used to come to the disputed house and live as her guest or licensee-Thereafter, he rented one room from her. As he refused to vacate, the ejectment suit was filed.
( 4 ) THE learned Subordinate Judge accepted the plaintiff's version and granted a preliminary decree for partition. He also passed a decree for accounts against the defendant No. 1 only regarding the income received from the disputed property. The rest of the prayer for accounts regarding the joint estate was not allowed.
( 5 ) HENCE this appeal by defendants Nos. 1 and 3 to 8. It has been contended on behalf of the appellants that the moot question is as to who acquired the disputed property and whether Monorama was the real owner or a mere benamidar regarding the property in question. The plaintiff's version cannot be accepted.
( 6 ) IT has been contended on behalf of the plaintiff-respondent that Monorama was not a woman of substance. It has not been proved that she had sufficient money to acquire
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