A suit for partial partition is maintainable if the property left out of the hotchpot is outside the territorial jurisdiction of the court.

( 1 ) IN this suit, a preliminary point has been taken on behalf of the defendant Nos. 1,3 and 4 as regards maintainability of the suit. Originally Mr. Deb, the learned Counsel for the said defendants had raised this preliminary point under the principle of Demurrer. But subsequently argument was advanced beyond this point, but on the issue of maintainability only. The primary arguments advanced by Mr. Deb in contesting the maintainability of the suit on the ground that this suit was in effect for partial partition, and hence not permissible under the law.

( 2 ) THE plaintiff instituted the present suit on 21st January, 1986 claiming inter alia, partition of a premises being numbered 9, Boys Own Library Row, as well as certain movable properties. The reliefs claimed in the suit included accounts for recovery of sums alleged to he due to the plaintiff in respect of the said premises, and in respect of two firms being run under the name and style of M/s. Chowdhury Printer and M/s. Dipti Industries, both located in the same premises. The written statement has been filed by the said defendants in which counter-claims were made for recovery of certain sums of money. Thereafter affidavit evidence was filed on behalf of the plaintiff by the plaintiff himself. So far as the defendants are concerned, an interlocutory motion being G. A. No. 1296 of 2005 was taken out for amendment of the written statement as also the counter-claim. Affidavit-in-opposition was filed to this interlocutory motion and affidavit-in-reply thereto were also filed. This interlocutory motion was subsequently dismissed as not pressed as the learned Counsel for the said defendants submitted that the defendants were not interested in prosecuting this interlocutory motion. In the main suit, however, issues have been framed and the first issue relates to the maintainability of the suit.

( 3 ) IT is in this backdrop the preliminary point as regards maintainability of the suit was heard. The facts of the case, as pleaded by the plaintiff, is that the plaintiff and the defendant Nos. 1 and 2 are brothers of the same blood. The defendant No. 1 is the eldest brother and the third defendant is his son and the fourth defendant is his wife. The case of the plaintiff is that on or about 24th may, 1963 the plaintiff and the defendant No. 1 and 2 had taken lease of certain vacant land in Calcutta for a period of ninety-nine years with a renewable option of equal duration and the premium for the same in equal shares was paid by the three brothers. The three brothers had constructed a four-storied masonry building on the said plot of land. The plaintiff claims that the defendant no. 1 as the Karta of the Hindu Joint Family used to induct tenants on behalf of plaintiff and the second defendant in the said premises.

( 4 ) IT is the case of the plaintiff that from the same premises a partnership business under the name and style of M/s. M. N. Chowdhury and Sons used to be carried on in which the three brothers had equal shares though the business used to be looked after and managed by the eldest brother (i. e. the first defendant), an arrangement which was accepted by the plaintiff and the second defendant. The plaintiffs allegation is that the first defendant was treated as custodian of his purse and valuables. Major portion of the shares of the income out of the said business and the property of the plaintiff and the second defendant were held by the first defendant. In the year 1970 the said firm had become a losing concern. Ultimately the plaintiff and the defendent No. 2 left Calcutta to live in the village in the district of Bankura, and the business of M/s. M. N. Chowdhury and Co. could not be restored.

( 5 ) THE substance of the allegations of the plaintiff, which led to the institution of the suit, is that the first defendant started controlling the said premises and had started two different businesses by making investment thereon from the income ea