DEBANGSU BASAK, J. - (1.) HARENDRA Kristo Dutt was survived by his five sons and his widow. He was the owner of the several immovable properties in the city of Kolkata and other places. He made and published his last Will and Testament on March 20, 1940. He died on May 22, 1950. By his Will late Harendra Kristo Dutt appointed his widow Kanchan Kumari Dassi and his two sons Rajendra and Sailendra as executors. The Will of Harendra provided that five sons would receive 1/5th share in his estate. It also stipulated that if Amarendra died without living behind any wife or issue his share would be divided equally between Jogendra and Mahendra. Probate of the Will of late Harendra was granted on June 23, 1950.
(2.) ACCORDING to the plaintiff the two named executors of Harendra were guilty of misappropriation of the estate. The widow of Harendra along with Amarendra and Jogendra filed a suit before this Hon'ble Court being Suit No. 239 of 1965 for removal of Rajendra and Sailendra as executors. Such suit was decreed on January 16, 1966. Rajendra and Sailendra were removed as executors. Amarendra, Jogendra and Mahendra along with the widow of Harendra were appointed as executors and executrix. The outgoing executors were required to file the accounts and inventory of the properties and credit of the deceased. Harendra was seized and possessed of eleven immovable properties identified in the plaint. Apart from the immovable properties Harendra was also seized and possessed of various movables. Of the eleven immovable properties the property at 2, Mitter Lane, Kolkata ­ 700007, was the family dwelling house. According to the plaintiff, Sailendra left the family dwelling house, except for a short period of time between 1959 -1960, when he came back to the family dwelling house. It was alleged by the plaintiff that, Sailendra floated several companies by using funds of the estate of Harendra and that, Sailendra did not account for his withdrawals from the estate. In Suit No. 239 of 1965 which was a suit for removal of Rajendra and Sailendra as executors, an affidavit was affirmed by Sailendra claiming that an agreement was entered into between him and other beneficiaries of the Will of Harendra to the effect that Sailendra had foregone his shares in the estate of Harendra on the terms and conditions stated in the agreement. Another suit being Suit No. 2243 of 1963 was filed between the parties. According to the plaintiff, Sailendra in such suit also admitted that he drew heavily from the estate of Harendra.
(3.) IN 1975 Amarendra and Jogendra filed the instant suit for partition. By consent of the parties to the suit, a preliminary decree was passed on January 27, 1997. The Preliminary decree specified the shares of the parties. Subsequently, the preliminary decree was modified to include the clause of the Will of Harendra relating to the devolution of Amarendra's share. A Commissioner of Partition was appointed by the preliminary decree. The preliminary decree also required the parties to render accounts before the Commissioner of Partition.;