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2016 Supreme(Cal) 651
IN THE HIGH COURT AT CALCUTTA
Shivakant Prasad, J.
Smt. Sandhya Basu Mallick & Anr. - Plaintiffs
Versus
Sri Pramatha Nath Sen - Defendant
CS No. 540 of 1988
Decided On : 15-12-2016
For the Plaintiffs : Mr. Sudip Deb, Mr. Sunil Kumar Chakraborty, Mr. Shiladitya Barma
For the Defendant : Mr. D.C. Thakur, Mr. A.K. Mukhopadhyay
The property of a Hindu male dying intestate is distributed among heirs in accordance with the law as per provision of Sections 8 & 9 of the Hindu Succession Act, 1956 and the Rules embodied under Section 10 of the Act which lays down that the property of an intestate shall devolve among the heirs in Class-1 of the schedule as per Rule 2 which provides that the surviving sons and daughters and mother of the intestate shall each take one share.
Headnote:
PARTITION - Suit for partition - Maintainability - Co-sharers - All co-sharers are necessary parties - All properties of co-sharers brought into hotchpotch - Gift by way of donatio mortis causa - Whether lawfully executed and duly registered - Obligation to furnish accounts of income and expenditure - Trust for and on behalf of plaintiffs - Whether defendant holds - Hindu Succession Act, 1956.
Fact of the Case:
Suit for partition of immovable and movable properties left behind by the deceased father of the plaintiffs and the defendants. Plaintiffs claimed 1/4th share each in the properties. Defendant no. 1 contended that the properties were already partitioned and that he was not liable to furnish accounts of income and expenditure. He also claimed that the deceased father had made a gift of certain movable properties to him by way of donatio mortis causa.
Finding of the Court:
The court held that all the co-sharers were necessary parties to the suit and that all the properties of the co-sharers had been brought into hotchpotch. The court further held that the gift by way of donatio mortis causa was lawfully executed and duly registered. The court also held that the defendant no. 1 was under an obligation to furnish accounts of the income and expenditure of the properties in question. Finally, the court held that the defendant no. 1 did not hold a trust for and on behalf of the plaintiffs in respect of the movable properties.
Issues: 1. Whether the suit is maintainable in its present form and prayer? 2. Whether all the properties of the co-sharers have been brought into one hotchpotch? 3. Whether all the co-sharers are made parties? 4. Whether all the necessary parties have been made parties to the suit? 5. Are the plaintiffs entitled to have one-fourth share each in respect of the suit premises mentioned in Annexure-A to E of the plaint? 6. Was there any previous partition between the parties in respect of the selfsame properties? 7. Was the alleged deed of gift dated 15th April, 1983 made in favour of the defendant no. 1 by his deceased father late Manmatha Nath Sen lawfully executed and duly registered? 8. Is the defendant no. 1 under an obligation to furnish the accounts of the income and expenditure of the Court-fees mentioned in Serial no. 2 to 4 of Annexure-A since 1985-86? 9. Did the defendant no. 1 hold a trust for and on behalf of the plaintiffs the gold coins (mohars), ornaments, fixtures, utensils, fixed deposits, money etc., belonged to the estate of late Manmatha Nath Sen as described in Annexure-C to E of the plaint?
Ratio Decidendi: The court relied on the provisions of the Hindu Succession Act, 1956, which provides that the property of a Hindu male dying intestate is distributed among heirs in accordance with the law as per provision of Sections 8 & 9 of the Act and the Rules embodied under Section 10 of the Act which lays down that the property of an intestate shall devolve among the heirs in Class-1 of the schedule as per Rule 2 which provides that the surviving sons and daughters and mother of the intestate shall each take one share. The court also relied on the decision in Krushanadas Nagindas Bhate vs. Bhagwandas Ranchhoddas and Ors. reported in AIR 1976 Bom 153, which held that a gift of movable property does not require to be registered.
Final Decision: The court decreed the suit in preliminary form in part on contest against defendant no. 1 and ex parte against defendant no. 2. The court declared that the plaintiffs and defendants have 1/4th share each in the suit properties in Annexure-‘A’ and Annexure-‘D’ to the plaint. The court also directed the parties to the suit to effect amicable partition within two months, failing which any of the parties shall be at liberty to put the decree into execution for final decree in terms of this preliminary decree by appointment of Commissioner for partition.
This is a suit for partition.
2. Plaintiffs’ case in brief is that on 13th May, 1983 the father of the plaintiffs and the defendants Manmatha Nath Sen died intestate, leaving behind the plaintiffs and the defendant no. 2 as his daughters and the defendant no. 1 as his only son who was governed by Dayabhaga School of Hindu law. Smt. Kamal Rabi Sen had predeceased her husband Manmatha Nath Sen.
3. Late Manmatha Nath Sen was the absolute owner of the immovable properties described in Annexure ‘A’ and movable properties held and possessed by him and described in Annexure ‘B’ to Annexure ‘E’ of the plaint.
4. According to plaintiffs, the defendant no. 1 is holding all the immovable and movable properties described in Annexure- ‘A’, ‘B’ to ‘E’ and all the relevant original title deeds papers and documents in respect of the said properties are lying in the custody of the defendant no.1.
5. According to the provisions of Hindu Succession Act, 1956 each of the plaintiffs and the defendants is entitled to get undivided 1/4th share both in immovable and movable properties left behind by their deceased father.
6. On the basis of arrangement, the defendant no.1, was realising rents from the tenants of the properties described as serial nos. 2 to 4 of Annexure ‘A’ and used to furnish accounts of the income and expenditure, but since 1985-86 accounting year, the defendant no. 1 failed and neglected to furnish any accounts inspite of repeated requests and has not paid Corporation Tax in respect of the said properties.
7. The plaintiffs repeatedly requested the defendant no. 1 to furnish the particulars of such contingent liability as also the joint accounts, bonds, securities etc. standing in the joint name, but the defendant no. 1 refused to furnish particulars of the same.
8. Hence, the suit.
9. The defendant no. 1 has contested the suit by filing a written statement and contended inter alia, that after the death of their father the plaintiffs, and the defendants by mutual consent appointed Sri Jitendra Mohan Auddy of No. 14, Bidhan Sarani, Calcutta, a registered Valuer, for the purpose of making valuation and distribution of the jewelleries and ornaments belonging to the estate of their father amongst them and the Valuer made valuation of all the jewelleries and ornaments belonging to the estate of their late father and divided the said jewelleries and ornaments amongst the plaintiffs, this defendant and the defendant no. 2 equally, that is to say, 1/4th share each, and such distribution of the said jewelleries and ornaments in the ratio as recorded in a document dated 31st May, 1987. The plaintiffs deliberately suppressed the facts as recorded in Annexure ‘B’ and ‘C’ to this written statement relating to distribution of jewelleries and ornaments. It is significant that the plaintiffs after distribution of the jewelleries and ornaments have again made a claim of the same as stated in annexure ‘D’ to the plaint.
10. Defendant’s specific case is that prior to death of Manmatha Nath Sen, the father of the parties, by a document dated 15th April, 1983 made a gift by way of donatio mortis causa to this defendant in respect of the joint fixed deposits, Savings Bank Account, National Savings Certificates VI issue and also for gold coins.
11. It is well within the knowledge of the plaintiffs that in the extra ordinary suit No. 4 of 1935 in respect of which the said deceased was a party, the Commissioner of Partition appointed by this Hon’ble Court never allotted the item no. 1 in Annexure ‘A’ to the plaint to the said deceased.
12. With regard to premises no. 9, Duff Street, Calcutta, being item no. 2 in Annexure ‘A’ to the plaint this defendant stated that the area of the said property is about 1 Cottah 10 Chittacks and the said property has long been let out to two tenants yielding an income of Rs. 205/- per month. The plaintiffs have also
