Decided on April 18,1975

Amal Krishna Sarkar Appellant
Bejoy Gopal Sarkar Respondents


BAHARUL ISLAM,J. - (1.) THIS is an appeal by the two plaintiffs who lost in both the Courts below.
(2.) THE facts relevant for the purpose of this case may be stated as follows: The two plaintiffs and defendant No. 1 are uterine brothers; defendant No. 3 is the wife of defendant No. 1. The plaintiffs have mentioned some immovable properties in Schedules 'ka', 'kha', 'ga', 'gha' and 'unga' and some movable properties in Schedules 'Cha' and 'Chha', to the plaint. Their case is that their father Late Janaki Nath Sarkar migrated to the district of Goalpara in Assam from the district of Jessore, East Bengal, now in Bangladesh, did timber business at Haltugaon and Kokrajhar and earned a lot of money. He died at Dhubri in 1939 when the plaintiffs were still minors living jointly at their original home with their mother. The plaintiffs allege that after the death of the father, defendant No. 1 acted as the Karta of the joint family and used to run the father's business in the district of Goalpara. Defendant No. 1 with the money inherited from the father, it is alleged, ran the paternal timber business, but he did it in his own name while the two minors were at Jessore with their mother. He got his name mutated in respect of the 'Ka' and 'Kha' schedule lands. In 1945 the land of Schedule 'Ka' was sold in auction for arrear of land revenue and in that auction defendant No. 1 got an amount of Rs. 2,500/-, which he invested in the timber business. About 5 or 6 years after the death of the father, defendant No. 1 brought defendant No. 2 from his native place and continued to run the business as before. The plaintiffs further allege that with the income of the joint family business and property defendant No. 1 acquired properties mentioned in Schedules 'Ga' and 'Gha' in the name of his wife, defendant No. 3; and although they are standing in her name, in fact the properties belong to the joint family of the plaintiffs and defendant No. 1. With regard to the properties mentioned in Schedule 'Unga' the plaintiffs' case is that it is a residential plot of land in Ward No. 2 of Kokrajhar town and is the joint family property. With regard to the properties mentioned in Schedules 'Cha' and 'Chha', the plaintiffs allege that some of the items have been received by defendant No. 1 from the father and some acquired with joint family fund. As on demand defendant No. 1 has refused to give the plaintiffs their share, they have instituted the present suit for a declaration that they are entitled to two-third share of the properties, for partition and possession. Defendant No. 1 has filed a written statement. He has traversed the allegations of the plaintiffs made in the plaint and denied them. He denies that the plaintiffs and defendant No. 1 were members of a joint family or that he was the Karta of any joint family. He avers that there never existed a joint family between them. He admits that the father did timber business, but the business had deteriorated before the death of the father and at the time of his death his business as well as financial condition was in such a bad shape that some days' before his death, the father had to erect a house on a plot of land belonging to Forest Department at Haltugaon with the permission of the Department and live there. After the death of the father, the two plaintiffs used to be brought up in the family of the elder sister's husband and their mother also used to stay there. With regard to the 'Ka' schedule land the case of defendant No. 1 is that the property belonged to him and his father, but it was sold in the revenue sale as alleged by plaintiffs, but he denied that he received Rs. 2,500/- as alleged by the plaintiffs or any money in the revenue sale. With regard to the properties mentioned in Schedules 'Unga', 'Cha' and 'Chha', he has denied that these properties were either received from the father or acquired with the money received from any joint family fund. He claims that these properties are his self-acquired properties. With regard to the properties mentioned in Schedules 'Ga' and 'Gha' his case is that these are the self-acquired properties of his wife, defendant No. 3. His case is that after the death of his father, he was in service, earned some money and started some ordinary business which he improved in course of time. After some time he did timber business and earned money with which he has acquired the suit properties mentioned in Schedules 'Unga', 'Cha' and 'Chha'. The property of Schedule 'Kha' had been mortgaged by his father and was ultimately sold to the mortgagee for the mortgage money, and he received no amount at all by the sale.
(3.) DEFENDANT No. 3 also has filed a written statement. Her case is that the properties mentioned in Schedules 'Ga', and 'Gha' are her separate properties acquired with her own money which she received as dowry from her father and brother at the time of and after her marriage.;

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