R.Bhattacharya, J. -
(1.)This is an appeal under the Letters Patent against the judgment and the decree passed by one of our learned brothers, A. K. Sinha, J. in a first appeal reversing the judgment and the decree passed by the Judge, 8th Bench of the City Civil Court at Calcutta in Money Suit No. 81 of I960. The defendants are the appellants here. In the trial court the suit was dismissed, but in the first appeal the suit was decreed after the setting aside of the decision of the trial court.
(2.)The relevant facts for this appeal may be stated in brief. One Jhawalal Gupta, a Hindu governed by the Benaras School of Hindu Law was the owner of several properties. He died leaving a widow and four sons. They constituted a joint undivided family. Thereafter Satya Narayan Gupta for self and representing his minor sons filed a suit in the High Court for partition in respect of the properties left by Jhawalal. There were prayers for partition of the properties and also for accounts. A preliminary decree was passed on 23-5-1952 and before the Commissioner of Partition, the plaintiff being the managing member of the undivided family filed accounts upto 31st Chaitra, 1361 B. S. corresponding to 14th April, 1055 in respect of the properties and the 'business sought to be partitioned. The Commissioner submitted a report and the court on hearing the parties accepted the Commissioner's report after some modifications therein, and passed a final decree in the suit on the basis thereof on 8-9-58. The parties, thereafter, took possession of the allotments made by the court according to the final decree. Subsequently, however, on 9-3-60 the plaintiff of the previous partition suit, Satya Narayan Gupta filed a Money Suit in the City Civil Court at Calcutta for recovery of an amount of Rs. 4572/- against the widow of late Jhawalal Gupta end the other three stepbrothers who were younger in age to the plaintiff and made defendants in the earlier partition suit. The allegations made in the plaint are that in connection with certain certificate cases started by the Income-tax Department for certain liability of the joint family of the parties and also for joint liability for payments of sale tax of the undivided business of the parties, the plaintiff Satya Narayan had to make payments to the total amount of Rs. 5265.59 to avoid attachment of his own properties and that excluding his share of liability, the plaintiff is entitled to get the total sum of Rs. 4572/- from the defendants on account of the latter's share of the liability. It may be mentioned that some items of payments as mentioned in the plaint were made after the final decree and the rest during the pendency of the suit. The defendants who are appellants in this appeal filed a written statement denying the liability, It is stated that the suit is barred by the principles of waiver, estoppel and acquiescence, that the suit is hit by the principles of resjudicata and that till the final decree was passed in the previous partition suit, the parties lived in joint mess and the defendants were under the control and management of the plaintiff. It is further stated in the written statement that all payments were made out of the fund of the joint estate and the defendants cannot be liable for any sum. It is also stated that if there was any liability, the plaintiff would have stated before the court in the partition suit or to the Commissioner of Partition and that in the absence of such assertion or claim in the partition suit, the plaintiff is not entitled to ask for contribution towards the alleged payments after the final decree. Such right, if any, was waived by the plaintiff. The learned Judge of the City Civil Court on a consideration of the evidence and circumstances came to the finding that there was abundant evidence to prove that till the date of final decree in the partition suit, namely, 8-9-58, the plaintiff controlled the affairs of the family relating to the immovable properties. The trial Judge disbelieved the plaintiff's evidence that his step-mother, one of the defendants, controlled the affairs of the joint property. The plaintiff himself admitted that he had brought a suit as Karta of the joint family against a tenant in respect of a joint property-According to the learned Judge of the trial court the plaintiff had in his hand money realised out of the joint family properties till the date of final decree and that the plaintiff failed to prove that he had made payment of the certificate dues and sale tax dues as mentioned in the plaint with his own money. In effect the trial court believed that upto the date of final decree, the plaintiff managed the joint family properties and handled the income of the same and as such the payments made were with the money of the joint fund. As the plaintiff could not prove that he spent his own money for meeting the joint liability, the suit was dismissed.
(3.)In the first appeal before this court preferred by the plaintiff two contentions were raised from the side of the appellants. The first one was that the onus of proving that the plaintiff continued to act as the karta of the joint family and received all the income of the properties lay on the defendants and the second one was that the burden was on the defendants to prove how much money was received by the plaintiff towards the income of the properties out of which he made payments of the dues towards the joint liability. On the points raised, Sinha, J. did not, however, confidently disturb the finding of the trial court that the plaintiff had been acting as the karta of the joint family till the dates of final decree in the partition suit. But according to him, it was for the defendants to prove how much money was actually realised by the plaintiff out of the joint family funds and further to prove that the plaintiff made payments towards the certificate and sale tax dues of the joint family out of the income of the joint properties coming to the hand of the plaintiff. On the question, of res judicata, Sinha, J. held,
"it is desirable that any joint liability of the family if known to any of the coparceners or the karta should be brought in the matter of final accounting between the parties, but if for any reason the parties failed to bring those items in the account adjusted one date prior to the payment of the liability that cannot mean that any party meeting that liability individually would be debarred from realising the proportionate amount by any legal action subsequently. This contention therefore fails."
Ultimately the appeal was allowed and the defendants were held to be liable to pay the amount claimed.