BISHWANATH KUNDU Vs. SUBALA DASSI

JUDGEMENT

(1.) This is an unfortunate proceeding between a mother and her son. Under a partition decree, the mother, who is the respondent before us was declared to be the owner of one-fifth share of the properties, involved in the said partition suit. This decree, which was in the nature of a preliminary decree for partition, was made on May 22, 1947, in the aforesaid partition suit (Title Suit No. 39 of 1946 of the Second Court of the Subordinate Judge of Howrah). This preliminary decree was adjusted by a subsequent consent order, dated October 1, 1948, whereby the mother decree-holder, who is the respondent before us, agreed to take a monthly allowance of Rs. 90/-per month from the appellant son in lieu of her aforesaid one-fifth share making the said allowance a charge on the said son's allotment In the said order for adjustment, there was a provision also for maintenance and marriage expenses of the four sisters of the appellant.

(2.) On February, 10, 1949, there appears to be a further agreement between the parties whereunder, the mother decree-holder before us, became prima facie entitled to claim payment of the aforesaid monthly allowance at double the rate, fixed above, in case of default for three consecutive months. This agreement was incorporated in a petition, described as a petition of compromise, filed before the Court below with a prayer that the Commissioner for Partition be directed to incorporate a term to the above effect in his report. Thereafter, the Ccmmissioner for partition submitted his report, making, inter alia, a provision therein to the above effect, and, in terms of the same, a final partition decree was made on August 20, 1949.

(3.) There does not appear to have been much trouble between the present parties with regard to the payment of the aforesaid monthly allowance of the decree-holder, respondent until about the year 1954, although, there were several other. proceedings between the parties to the partition . suit in the mean lime. Of these proceedings, it is necessary to mention one, which will be relevant for purposes of our decision of the present appeal.