The main legal point established in the judgment is the acceptance of partition by the representatives of the deceased joint owners and the appointment of a Commissioner of Partition for overseeing the partition.

JUDGMENT

Arindam Mukherjee, J. - Three brothers namely Amiya Kumar Gooptu, Supriya Kumar Gooptu (plaintiff No.1) and one Saibal Kumar Gooptu, jointly owned and possessed an area of land measuring about 1 Bigha, 3 Chittacks and 41 Sq. Ft with a four storeyed building built up on a portion thereof along with certain other structures standing thereat being Municipal Premises No. 7A, Prafulla Chandra Sen Sarani (formerly known as Middleton Street), Kolkata-700071 (hereinafter referred to as the 'said property'). Subsequently, the four storeyed structure was demolished as required and new construction of separate lots by the joint owners as agreed between themselves were made but the premises number remained the same, and as such is referred to as the said property.

2. As appears from the registered deed of partition dated 30th September, 1997 (Exhibit A) that a Memorandum of Understanding dated 7th February, 1985 and a Supplemental Memorandum of Understanding dated 9th November, 1987 were entered into by the said three brothers, Amiya Kumar Gooptu, Supriya Kumar Gooptu and Saibal Kumar Gooptu, by and under which it was agreed that the said property would be partitioned and divided by metes and bounds amongst them. As per such understanding Lot D measuring 4 cottahs, 9 chittacks 35 sq ft. of the said property was allotted to the said Amiya Kumar Gooptu, Lot C measuring 4 cottahs, 3 chittacks 14 sq ft. of the said property was allotted to the said Saibal Kumar Gooptu, Lot B measuring 4 cottahs, 4 chittacks 15 sq ft. of the said property was allotted to the said Supriya Kumar Gooptu and Lot A measuring 2 cottahs, 14 chittacks more or less of the said property with a four storeyed building standing thereat along with a common passage (hereinafter referred to as the suit property) was agreed upon to remain in common ownership of the said Amiya Kumar Gooptu, Supriya Kumar Gooptu and Saibal Kumar Gooptu.

3. Lot A, B, C and D were subsequently numbered as Premises No. 7A/1A, 7A/1B, 7A/1C and 7A/1D Middleton Street (now Prafulla Sen Sarani) Kolkata-700071 respectively. The suit property, Lot A that is premises no. 7A/1A more fully described in the schedule of the plaint is the subject matter of the instant partition suit.

4. On 14th October, 1993 the said Saibal Kumar Gooptu died after publishing his last will and testament dated 10th April, 1992 appointing Smt. Chitrita Gooptu (plaintiff No.2) as the sole Executrix to his estate. Smt. Chitrita Gooptu obtained probate of the last will and testament of Saibal Kumar Gooptu from this Court in December, 1993 (Exhibit D).

5. On 30th September, 1997 a registered partition deed marked as Exhibit A in the proceeding was executed by and between Amiya Kumar Gooptu, Supriya Kumar Gooptu and Smt. Chitrita Gooptu representing the estate of Saibal Gooptu acknowledging and admitting the partition of the said premises into Lots A, B, C and D between Amiya Kumar Gooptu, Saibal Gooptu and Supriya Gooptu as agreed under the Memorandum of Understanding dated 7th February, 1985 and the Supplemental Memorandum of Understanding dated 9th November, 1987. Even after execution of the said partition deed, the suit property (Lot A) remained under joint ownership of the three branches headed by the three brothers.

6. Amiya Kumar Gooptu by a letter dated 30th September, 1997 (Exhibit B) addressed to the plaintiffs, informed the plaintiffs that he was holding the following documents in respect of the suit property which he assured to produce as and when requested:-

1) Original Registered lease and agreement with M/s.Tata Korf Engg. Services Ltd.

2) Original Tenancy Agreement for rental & other charges with M/s.U B Ltd and their original letter for vacating the flat on expiry of the term.

3) Original Tenancy Agreement with M/s.Gupta Auto Agency.

7. On 18th January, 2006, the said Amiya Kumar Gooptu died after publishing his last will and testament dated 14th November, 2005 as per the statement made in the plaint, appointi