- (1.) Both these appeals arose out of a common judgment and decree dated March, 30, 1961 passed by learned Subordinate Judge, Malda in Partition Suit No.69 of 1952. By the judgment impugned learned Judge of the Trial Court decreed the suit in part in preliminary form declaring the shares of co-plaintiffs namely Satya Charan Sarkar and Sabitri Sundari Sarkar together, contesting defendant No.1 Bipra Charan Sarkar and defendant No.4 Kadambini Sarkar as one-third each in the remaining Ejmali properties, that is, Ejmali Zemindari, Pattani and the Bastoo Bati at Maheshpur and at Puratuli. The parties were directed to effect amicable partition in respect of those joint properties within three months, with liberty to apply for a final decree in the event of failure to effect available partition.
(2.) The appellants of Appeal No.68 of 1962 namely Prabhati Roy and Arati Roy originally filed said partition suit praying for partition and accounts making following averments: One Gouri Prasad Sarkar, predecessor-in-interest of the parties acquired valuable properties both movable and immovable as described in the Schedules of the plaint. He died leaving three sons namely Abhoy Charan, Bipra Charan and Bhairab Charan. Even after his death said sons lived in Ejmali and acquired further properties in their names as well as in the benam of their wives and children by utilizing Ejmali fund. Bhairab Charan died in 1340 B. S. (1933) leaving behind widow Kadambini Sarkar (defendant No.4) and a daughter Prabhati (plaintiff No.1) and a child in her mother's womb. A daughter was born in Kartick, 1341 B. S. (October, 1934) naming Arati (Plaintiff No.2). Kadambini acquired a limited widow's estate in respect of one-third share of her husband Bhairab. Abhoy Charan died in 1342 B. S. (1935) leaving behind two sons namely Satya Charan (defendant No.2) and Hari Charan. Hari Charan died in 1347 B. S. (1940) and his one-sixth share devolved on his mother Sabitri Sundari (defendant No.3). Kadambini (defendant No.4) surrendered her limited interest in favour of her daughters namely plaintiffs on 9 th Chaitra, 1356 B. S. (22 nd March, 1952) and confirmed the same by a notice dated 11 th Chitra, 1358 B. S. (21 st March, 1952). Abhoy Charan acted as 'Karta' of the Ejmali estate upto his death in 1342 B. S. (1935) and thereafter Bipra Charan (defendant No.1) became the 'Karta' of the joint family. Some properties were acquired with Ejmali fund in the name of some of the defendants. A house in the town of Malda at Mouza Pura Para was also constructed with Ejmali fund. The plaintiffs have been married with sons of Aushotosh Roy who happens to be a brother of Biroj Kamini, wife of defendant No.1. Bipra Charan (defendant No.1), Kadambini (defendant No.4) and the sons of Abhoy Charan separated in mess in 1349 B. S. (1943). By exercising undue influence some immovable properties together with a cash sum of Rs.8250/- were given to Kadambini by defendant No.1 but no accounts was furnished. A partition deed was obtained by Bipra Charan (defendant No.1) by misrepresentation. The partition deed was not acted upon. Plaintiffs were not also bound by the actions of their mother Kadambini (defendant No.4) prior to the surrender. As joint possession was found to be inconvenient plaintiffs asked for partition and accounts but in vain. Hence was the suit praying for partition and for accounts.
(3.) Defendant No.1, 5, 6 and 7 namely Bipra Charan, Biroj Kamini (wife of Bipra Charan), Biharilal (son of Bipra Charan), Motilal Roy (son of Puroshottom Roy) filed a joint written statement alleging as follows: Gouri Prasad Sarkar died about 60 years back leaving behind little properties. His other two sons namely Abhoy and Bhairab never earned any money in their lifetime. Defendant No.1 Bipra Charan had separate earnings and improved the condition of joint estate. Many of the properties acquired with his personal income were thrown in the joint stock. Due to internal quarrels between some of the cosharers' parties separated in mess in 1346 B. S. (1939). Since then profits were divided into three shares. After the marriage of the plaintiffs their father-in-law Aushotosh became their advisor and pressed for partition of properties excluding the Zemindari and Bastoo Bati at Maheshpur. Accordingly, there was accounting and partition. Rs.8250.70/- was found due to each group of co-sharers and accordingly said amount was paid under proper receipt. The immovable properties were all partitioned in 1346 B.S. (1939) except the Zemindari and the Bastoo Bati at Maheshpur. The house at Malda is a self-acquired property of Bipra Charan (defendant No.1) and he gifted the same to his wife Biraj Kamini (defefant No.5). The allegation that some joint properties are still standing in the name of defendant No.1 and some other defendants is false. The plea of surrender of the interest of Kadambini (defendant No.4) in favour of plaintiffs was not admitted. The plaintiffs are bound by the partition deed. The suit was liable to be dismissed with cost. ;