Decided on September 16,1970

Indu Kumar Banerjee Respondents


A. Roy, J. - (1.) These two appeals arise out of the same judgment and decree passed by a learned Subordinate Judge of Howrah by which two suits heard analogously were disposed of. Sukumar Banerjee, who is Appellant in both the appeals, was the Plaintiff in Partition Suit No. 30 of 1955 and Defendant in T.S. No. 53 of 1955 which was a suit for specific performance of an agreement instituted by the Respondents Nos. 1 and 2. Partition Suit No. 30 of 1955 was dismissed and the suit for specific performance has been decreed by the learned Subordinate Judge. The two appeals in this Court have been preferred by the same person Sukumar Banerjee and the two appeals have been heard analogously in this Court. Parties in both the appeals were represented before us by same set of lawyers on either side. Mr. Bankim Chandra Banerjee with Mr. Gaganendra Krishna Deb appeared for the Appellant and Mr. Panchanan Pal with Mr. Sasthi Charan Roy appeared for the Respondents Nos. 1 and 2. The Respondent No. 3, who was a pro forma Defendant in the Court below, did not appear in this Court.
(2.) Facts relevant for disposal of the two appeals are that Sukumar, the Plaintiff in Suit No. 30 and Defendant in Suit No. 53, is elder step -brother of Indu and Gora who are the Defendants in Suit No. 30 and Plaintiffs in Suit No. 53. They are sons of Abani who died in July 1939. Abani's father Harihar had seven sons. Harihar died in 1930 after making testamentary disposition of his properties by a will dated January 21, 1925, and several codicils dated November 20, 1926, September 3, 1930 and November 25, 1930. One of his sons Banwarilal as sole surviving executor appointed by the said will obtained probate thereof in Probate Suit No. 41 of 1945 of the Court of the District Judge, Howrah. Under the terms of that will specified properties were bequeathed to Abani for his life, then to Abani's sons for life and then in absolute interest to the son's sons of Abani. Similar dispositions were made by that will of other specified properties to his other sons, grand -sons and great grand sons. Genealogical table appended below will show the relationship of parties in this litigation:
(3.) Sukumar is the eldest son of Abani by his first wife and Indu and Gora are Abani's sons by his second wife. Each of them have 1/3rd share in life interest in properties bequeathed to Abani by the will of Harihar. There is no dispute that the properties mentioned in items 1 to 5 in Schedule ka of the plaint are properties bequeathed by Harihar by his will as mentioned above. But items 6, 7 and 8 which were added by amendment were disputed by Indu and Gora as self -acquired properties of Gora, not acquired by ejmali funds as claimed by Sukumar.;

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