Decided on April 09,1976



M.M. Dutt, J. - (1.)This appeal is at the instance of the Plaintiffs and it arises of a suit for recovery of money.
(2.)One Nandalal Das, since deceased, owned considerable properties. He died leaving six sons, Nilmoni, Govinda, Gopinath, Madan, Radhanath and Kanailal. All of them, excepting Radhanath and Kanailal, are dead. Nilmoni instituted a suit for partition in the Original Side of this Court being Suit No. 1468 of 1937 against his brothers. The said suit was decreed in a preliminary form on August 26, 1937 and on July 1, 1943, it was decree finally on compromise. Nilmoni separated from his other brothers and he was allotted properties in respect of his share. The properties that were allotted to him by the compromise decree are a specific portion of the homestead at 269 Vivekananda Road, Calcutta, a specific portion of the flour mill at 244/2 Upper Circular Road, Calcutta and the whole of a house property at 244/1 Upper Circular Road, Calcutta. The other brothers of Nilmoni remained joint and constituted a joint family.
(3.)On November 15, 1965, another suit being T.S. 104 of 1965 of the Tenth Court of the Subordinate Judge, Alipore, was instituted by Sm. Mahamaya Das, widow of Madan and by Radhanath, Kanailal and the sons of Gopinath against Govinda for partition and accounts. In the plaint, certain allegations were made against Govinda including those contained in para. 19:
The Plaintiffs also claim all moneys withdrawn from the common joint till by or at the instance of or on account of the Defendant and advance or debited by the said Defendant Govinda Chandra Das to Chittaranjan Das, Panchanan Das and Karunaranjan Das (who are the sons of Nilmoni) jointly of 269B Vivekananda Road, Calcutta -6, as Karta and Manager in the books of account of the joint family kept and maintained by the Defendant and/or under his control and custody.

In the said suit, Radhanath was appointed a Receiver for realisation, management, protection, preservation and improvement of the immovable properties described in Schedule 'C' of the plaint and for collection of rents and profits thereof till the disposal of the said suit. The Defendant Govinda was also appointed a Receiver for the aforesaid purposes in respect of the immovable properties described in Schedule 'D' of the plaint. Govinda died during the pendency of the said suit and in his place one Somenath Ghosh was substituted. The said suit was ultimately disposed of in accordance with the terms embodied in a joint petition of compromise. Clause (iv) of the terms of compromise is as follows:

The Plaintiffs shall not claim any sum of money from Somenath Ghosh alias Das, the substituted Defendant in place of Govinda Chandra Das, the Defendant No. 1, nor Somenath Ghosh shall claim any sum of money from the Plaintiffs.


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