Amar Nath Varma, J. - (1.) The applicant was Defendant No 1 in a suit filed by Sri Chandi Das Basu, the Respondent No. 1 herein, for partition of certain immovable and movable properties as well as for rendition of accounts against the Appellant and the remaining Respondents The suit has been decreed by the learned Civil Judge, Allahabad. The decree passed by the court below is for partition of 5/4th share of the Plaintiff in the property mentioned in Schedule ' A ' and 5/24th share in the properties mentioned in Schedule ' R ' to the plaint except house No. 71 Bahadurganj and plot No. 27 Baika -Bagh as well as for possession over his divided portions of the properties mentioned above. The decree also provides for partition of the half share of Defendant No. 6 in the property mentioned in Schedule ' A ' subject to payment by him of the requisite court -fees. Finally, the Appellant was directed under the decree to render full and complete account to the rent and income and expenditure from the properties motioned at serial number 1 to 4 of the properties of Schedule ' A ' with effect Iron August 1967 as well as for the recovery of the Plaintiffs share in the rent and income arrived at upon accounting from the appellant.
(2.) I shall first briefly summarise the plaint case Srish Caandra Basu, the grand -father of the plaintiff - respondent and Defendant Nos. 1 to 5 and Baman Das Basu the grand -father of Defendant no (Oipaukar Basu) were both sons of one Shyam Charan Basu. Srish Chandra Basu and Baman Das Basu jointly acquired house No. 63 Bahadurganj mentioned in Schedule ' A ' to the plaint. Srish Chandra Basu acquired from his own independent income and funds certain other immovable properties and movable assets mentioned in Schedule ' B ' to the plaint with these properties Baman Das basu had no concern. Thus Srish Chandra Basu and baman Das basu had halt share eaco in the properties of Schedule ' A. On under death of Srish Chandra Basu his half share in this property devolved upon the two sons equally, namely. Dr. S.N. Basu and Sn Kamendra Nath basu. Likewise, the properties of Srish Chandra Basu mentioned in Schedule B devolved equally on his two sons aforesaid. Dr. S.N. Basu, however, executed a will bequeathing his share and interest in the properties mentioned in Schedules A and B to the Plaintiff and Defendants Nos. 1, 1 and 3 in equal shares with a right of residence to defendant No. 4 in house No. 63 Baaadurganj. Thus, on the death of the lather of the plaintiff and Dr. S.N. Basu the share of the Plaintiff in the properties mentioned in Schedule A worked out to 5/48 and, in the properties mentioned in Schedule B to 5/24. Since the death of Sri K.N. basu in January 1959 the Defendant No. 1 has been looking after the properties in suit and has been receiving all the rents and income therefore without sharing the same with the Plaintiff or rendering accounts there! or The Plaintiff requested the Defendant to effect a partition of the properties but to no avail Hence the suit.
(3.) The suit was contested by the Appellant (Defendant No. 1). His case was that the Plaintiff had no right to sue He had not made any request for partition before filing the suit. Dr S.N. Hasu was the karta and manager of the entire family properties during his life -time and, after the death of Sri R.N. Basu in January 1959 till August 1967 , when the died Alter the death of Dr. S.M. Basu whatever amount to rent was collected by the defendant No. 1 was spent over the maintenance and repair of the properties in suit and payment of taxes etc. Further Sri R.N. Basu had let certain debts most of which were paid off by the Defendant No. 1. Some amount however, still remained to be paid Under the circumstances, the Plaintiff was not entitled to the relief for rendition of accounts - The snare claimed by the Plaintiff in the properties in suit was, however, admitted by the Defendant No. 1.;