Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1959 Supreme(Cal) 258

HIGH COURT OF CALCUTTA
P. C. MALLICK, J.
Debabrata Ghose
Versus
Jnanendra N. Ghose
Suit No.1997 of 1954
Decided On : 23-12-1959

Advocates:
S.K. Das, P.K. Sen, for Plaintiff; B.C. Dutt and S. Chatterjee, for Defendants.

A co-sharer who has sold away the property allotted to him on partition is not entitled to claim either compensation or repartition, if title to the property allotted to him is subsequently displaced by a paramount title resulting in the dispossession not of himself but of his transferee.

Headnote:
PARTITION - Reopening of partition - Grounds - Mistake - Bona fide mistake - Inclusion of stranger's property - Equitable relief - Contribution - Limitation - Art. 96, Limitation Act.
Fact of the Case:

The plaintiff, as the son of Nagendra, sought to reopen a partition effected in 1920 on the ground that the partition was invalid and inoperative as it included a property that was not part of the joint family property but was debutter property. The plaintiff claimed that the partition was made under a bona fide mistake and that he was entitled to equitable relief in the form of contribution from the other co-sharers.
Finding of the Court:

The court held that the partition of 1920 was a perfectly valid partition in law and that Jnanendra acquired good title to the properties allotted to him on such partition. The court further held that even if the partition was void, the plaintiff's claim was barred by limitation as it was filed more than 3 years from the date of knowledge of the mistake.
Issues: 1. Whether the partition of 1920 was invalid and inoperative due to the inclusion of stranger's property? 2. Whether the plaintiff was entitled to equitable relief in the form of contribution from the other co-sharers? 3. Whether the plaintiff's claim was barred by limitation?
Ratio Decidendi: 1. The court held that the partition of 1920 was a perfectly valid partition in law and that Jnanendra acquired good title to the properties allotted to him on such partition. The court reasoned that a partition is liable to be reopened only on the ground of fraud or mistake, and that in the present case, no allegation of fraud had been made and the mistake alleged by the plaintiff was not a mistake of law but a mistake of fact, which did not invalidate the partition. 2. The court held that the plaintiff was not entitled to equitable relief in the form of contribution from the other co-sharers. The court reasoned that a co-sharer who has sold away the property allotted to him on partition is not entitled to claim either compensation or repartition, if title to the property allotted to him is subsequently displaced by a paramount title resulting in the dispossession not of himself but of his transferee. 3. The court held that the plaintiff's claim was barred by limitation. The court reasoned that the appropriate limitation period for a suit for repartition on the ground of mistake is Art. 96 of the Limitation Act, which provides a limitation period of 3 years from the date of knowledge of the mistake.
Final Decision: The court dismissed the plaintiff's suit.

JUDGMENT :- This is a suit in which the plaintiff seeks to reopen a previous partition effected in 1920. The properties in suit along with a number of other properties belonged to one Dwarkanath Ghose. Dwarkanath Ghose died in 1892 after having published a will. By his will Dwarkanath created an absolute defaulter in respect of two of his properties, namely, premises No. 40/1 and No. 41 Grey Street and bequeath the rest to his two sons Rajendra and Jogendra in equal share. Rajendra predeceased his father after having published a will. By his will, Rajendra appointed his brother Jogendra as the executor and bequeathed his properties to his four sons in equal shares subject to the payment of an excess amount to his youngest son Nagendra. His other sons are, Sidheswar, Bhupendra and Jnanendra. Jogendra applied for and obtained probate both of the will of his father Dwarkanath and of the will of his elder brother Rajendra. On 4-9-1909, Bhupendra, Jnanendra and Nagendra the three sons of Rajendra then alive instituted a suit in this Court against Jogendra and others for construction of the wills of Dwarkanath and Rajendra and for partition. This was suit No. 969 of 1909. This suit ended in a consent decree on 24-11-1910. By the consent decree the parties had the entire estate of Dwarkanath including the two premises No. 40/1, Grey Street and No. 41, Grey Street partitioned amongst themselves on the footing that the said two properties were also secular. By this decree, all the properties belonging to the estate of Dwarkanath were divided into two parts, one part including premises No. 40/1, Grey Street, was allotted to Jogendra and the other part which included premises No. 41, Grey Street was allotted to the three sons of Rajendra jointly. Sidheswar the only other son of Rajendra died long ago in 1903 leaving him surviving his widow, Padma Dasi, as his sole heir. The three sons of Rajendra subsequently in 1920 had the properties jointly allotted to them by the decree in Suit No. 969 of 1909 partitioned amongst themselves by one Kedarnath Ghose who was appointed arbitrator to effect the partition. Kedarnaths award is dated 12-10-1920, which was accepted by the parties in writing and was registered. To Nagendra was allotted premises No. 41, Grey Street subsequently renumbered No. 41/A, Grey Street. To Jnanendra was allotted premises No. 40, Grey Street and premises No. 86 Raja Baba Kissen Street. To Bhupendra was allotted premises No. 24/2, Nalin Sarkar Street. Padma Dasi was given no property but provision was made for her maintenance which was charged on the properties allotted to the parties. It is recorded that the moveables have been divided amongst the parties. Only one item of joint property was not partitioned and this is the royalty payable in respect of the Rajendra jute mark from the packers. It was directed that it would remain joint property and the royalty realisable would be divisible among the three brothers equally. The property allotted to Bhupendra had since thereafter been sold in execution of a decree passed against him on 4-5-1923 and was purchased by Upendranath Sarkar and others. Nagendra mortgaged the properties allotted to him, for Rs. 4,500/-. The mortgagee Snehalata enforced the mortgage and the property was ultimately sold on December 9, 1936 and purchased by Haricharan, Haripada and Durga Charan Dutts for Rs. 19,000/-. There has been subsequent transfers made by the Dutts.

2. The plaintiff Debendra is the only son of Nagendra who died sometime in June 1931. In 1948 the plaintiff as the next friend of the family deity Sri Sri Ishwar Sreedhur Jew instituted a suit in this Court being Suit No. 2379 of 1948 to establish the title of the deity in the premises No. 41/A and 42 (formerly 40/1 and 41, Grey Street) which were created debutter by Dwarkanath but secularised by the consent decree in Suit No. 969 of 1909 as previously stated. This suit was heard by H.K. Bose J. and by his judgment and decree dated 15-

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1959 Supreme(Cal) 258

HIGH COURT OF CALCUTTAP. C. MALLICK, J.Debabrata GhoseVersusJnanendra N. GhoseSuit No.1997 of 1954Decided On : 23-12-1959

A co-sharer who has sold away the property allotted to him on partition is not entitled to claim either compensation or repartition, if title to the property allotted to him is subsequently displaced by a paramount title resulting in the dispossession not of himself but of his transferee.

HIGH COURT OF CALCUTTA
P. C. MALLICK, J.
Debabrata Ghose
Versus
Jnanendra N. Ghose
Suit No.1997 of 1954
Decided On : 23-12-1959