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High Court Of Calcutta
Before : Arun Kumar Bhattacharya, J.
SUNIL BARAN CHOWDHURY - Appellant
Versus
ANATH BANDHU CHOWDHURY - Respondent
C. S. 45 Of 1986
Decided On : 08/18/2006
ADMISSION - PARTITION - GOLD ORNAMENTS - COUNTERCLAIM - [ORDER 12 RULE 6, ORDER 8 RULE 5 CIVIL PROCEDURE CODE, TRANSFER OF PROPERTY ACT SECTION 100] - Plaintiff's suit for partition, recovery of gold ornaments, and other reliefs was partially allowed on admission under Order 12, Rule 6 read with Order 8, Rule 5 of the Civil Procedure Code. The court held that the plaintiff and defendants 1 and 2 had undivided one-third share each in the disputed property and decreed partition accordingly. The plaintiff was also granted a decree for the recovery of gold ornaments weighing about 15 bharis, dressing table, and Godrej steel almirah from defendant No. 1. The defendants' counterclaim for a sum of Rs. 2,22,000/- alleged to have been incurred by them towards maintenance of the two daughters of the plaintiff was dismissed as it had no nexus with the plaintiff's claim.
Fact of the Case:
Plaintiff and defendants 1 and 2 took a lease of vacant land from the Calcutta Improvement Trust for 99 years with an option to renew for a further period of 99 years. They constructed a four-storeyed building on the land and used and occupied the premises partly in khas and partly by letting out to tenants. The plaintiff and defendants 1 and 2 carried on a partnership business in the premises. The plaintiff left Calcutta and came to live at his native place in the District of Bankura, leaving with defendant No. 1, 30 bharis of gold ornaments, utensils, dressing table, and Godrej steel almirah as his safe custodian. Defendant No. 1 started letting out the premises to various new tenants at high rates of rent and taking considerable amount from them as selami as sole landlord without the knowledge of the plaintiff and started depriving the plaintiff of his due share of rents and selamis. Defendant No. 1 started two business in the names and style of M/s. Chowdhury printers and M/s. Dipti Industries at the said premises in the names of his son defendant No. 3 and wife defendant No. 4 respectively, by making investments of the said wealth and remaining assets and capital balance of the above defunct business M/s. M. N. Chowdhury and Sons. The plaintiff and defendant No. 2 demanded partition of the premises, accounts of rents, 30 bharis of gold ornaments etc. and their due shares of profits out of the said two business, but the defendants failed to comply with the requisition of the said notice. Hence the suit for declaration, permanent injunction, partition, accounts, recovery of gold ornaments etc. and other reliefs.
Finding of the Court:
The court held that the plaintiff and defendants 1 and 2 had undivided one-third share each in the disputed property and decreed partition accordingly. The court also granted a decree for the recovery of gold ornaments weighing about 15 bharis, dressing table, and Godrej steel almirah from defendant No. 1. The defendants' counterclaim for a sum of Rs. 2,22,000/- alleged to have been incurred by them towards maintenance of the two daughters of the plaintiff was dismissed as it had no nexus with the plaintiff's claim.
Issues: Whether the plaintiff is entitled to a decree for partition of the disputed property? Whether the plaintiff is entitled to a decree for recovery of gold ornaments and other articles? Whether the defendants are entitled to a counterclaim for a sum of Rs. 2,22,000/- alleged to have been incurred by them towards maintenance of the two daughters of the plaintiff?
Ratio Decidendi: The court held that the plaintiff was entitled to a decree for partition of the disputed property as the plaintiff and defendants 1 and 2 had undivided one-third share each in the property. The court also held that the plaintiff was entitled to a decree for the recovery of gold ornaments weighing about 15 bharis, dressing table, and Godrej steel almirah from defendant No. 1 as the defendants had admitted to having kept the said articles with them. The court dismissed the defendants' counterclaim as it had no nexus with the plaintiff's claim.
Final Decision: The suit was decreed in part. The plaintiff was granted a decree for partition of the disputed property and a decree for the recovery of gold ornaments weighing about 15 bharis, dressing table, and Godrej steel almirah from defendant No. 1. The defendants' counterclaim was dismissed.
( 2 ) MR. Chowdhury, learned counsel for the plaintiff, urged for judgment on admission under Order 12, Rule 6 read with Order 8, Rule 5 of the Civil Procedure Code.
( 3 ) BEFORE I open the discussion, the miniaturised version of the plaintiff as borne out in his plaint need be stated.
( 4 ) DEFENDANT No. 1 being the eldest brother of the plaintiff and defendant No. 2 and Karta of the family used to manage the joint family. On 24. 05. 63 the plaintiff and defendant Nos. 1 and 2 took lease of a vacant land appertaining to plot No. 21 in Scheme No. LXIVA containing about 4 cottahs 3 chittaks 34 sft. from the Calcutta Improvement Trust for 99 years with option to renew for a further period of 99 years at a premium of Rs. 1,02,480/-, out of which Rs. 51,240/- was paid by them in equal shares and the balance amount by equal and annual instalments and thus the plaintiff and defendant Nos. 1 and 2 have undivided one-third share each in the said plot of land which was originally known as premises No. 21, Sahitya Parishad Street and subsequently came to be known as 9, Boys' Own Library Row, Calcutta-
6. The plaintiff and defendant Nos. 1 and 2 constructed a four-storeyed masonary building on the said land at the joint expenses in equal shares and came to use and occupy the premises partly in khas and partly by letting out to tenants. Defendant No. 1 being the Karta of the joint family used to induct tenants on behalf of the plaintiff and defendant No. 2. The plaintiff and said defendants 1 and 2 carried on a partnership business in the name and style of M/s. M. N. Chowdhury and Sons in equal shares in the said premises, and the business was looked after by defendant No. 1 as the eldest brother. The plaintiff having good faith in defendant No. 1 treated him as the custodian of his purse and valuables and as such major portion of income out of the said business and property in the shares of the plaintiff and defendant No. 2 were held by defendant No. 1. The said business became a losing concern for which it was stopped running in 1970, and at the advice of defendant No. 1, the plaintiff and defendant No. 2 ultimately left Calcutta and came to live at their native place in the District of Bankura so as to curtail the establishment in Calcutta and to enable defendant No. 1 to restore the said business. At the time of leaving Calcutta, the plaintiff left with defendant No. 1, 30 bharis of gold ornaments, utensils, dressing table and Godrej steel almirah as his safe custodian. Taking advantage of the absence of the plaintiff in Calcutta and his total reliance, defendant No. 1 started letting out the said premises to various new tenants at high rates of rent and taking considerable amount from them as selami as sole landlord without the knowledge of the plaintiff and started depriving the plaintiff of his due share of rents and selamis and thus defendant No. 1 thereby amassed enormous wealth. Defendant no. 1 started two business in the names and style of M/s. Chowdhury printers and M/s. Dipti Industries at the said premises in the names of his son defendant No. 3 and wife defendant No. 4 respectively, by making investments of the said wealth and remaining assets and capital balance of the above defunct business M/s. M. N. Chowdhury and sons. Defendant Nos. 3 and 4 had never any fund of their own to commence the said business, and as such the plaintiff and defendant nos. 1 and 2 are jointly entitled to enjoy the assets and usufructs of the said two business. Defendant No. 1 failed and neglected to pay shares of income out of the said premises No. 9, Boys' Own Library Row, calcutta-6 and the said two business or to render accounts or to distribute assets and capital balance of the defunct business M/s. M. N. Chowdhury and Sons, for which the plaintiff and defendant No. 2 by a notice dated 20. 10. 82 through their advocate demanded share of rents realized, accounts, the said 30 bharis of
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