- (1.) TWO of the defendants seek leave to amend the written statement filed on their behalf in this suit for partition and administration and include a counter claim therein. The proposed counter claim is directed both against the plaintiff and some of the other defendants, who attempt to resist it on the principal ground that it would change the nature and character of the suit and bring within its fold issues that a partition suit cannot accommodate.
(2.) NO preliminary decree has yet been made but the opposing parties remind of the principle recognised in Order VIII Rule 6a of the Code of Civil Procedure, 1908 that a counter claim may not be received if the cause of action indicated therein is one that arose after the date of filing of the written statement or after the time within which the written statement was required to be filed. The applicants claim that tenants and rank trespassers had been inducted into premises no. 6a, Balmukund Mackar Road, Calcutta ? 700007 which is partly occupied by the parties as their residence. It is evident that the persons that the applicants describe as trespassers may have been inducted subsequent to July 16, 1996 as the applicants suggest that such persons have been allowed to occupy portions of the said premises in derogation of an order passed in the suit on July 16, 1996. The applicants claim that in September, 2006 the applicants came to learn that the third, fourth and fifth defendants had acquired other properties out of the rents and income relating to premises no. 6a, Balmukund mackar Road (hereinafter referred to as premises no. 6a), albeit in the names of their respective wives. The applicants seek to assert, by incorporating the amendments that the second, third and fifth defendants had acquired the properties out of the corpus and such properties should be declared to be part of the joint assets. The applicants say that the plaintiff aided in the second, third and fifth defendants secreting the joint funds for such purpose. The reliefs for which the applicants seek to counter claim include a declaration relating to the additional properties being introduced into the joint assets, partition thereof and, generally, for accounts to be rendered.
(3.) THE applicants urge that there is always a presumption as to acquisition of properties if it can be demonstrated that the acquirers had no separate source of funds save the nucleus of the family. For such purpose, the applicants rely on the judgment reported at AIR 1965 SC 289 (K. V. Narayanaswami Iyer v. K. V. Ramakrishna Iyer) and place paragraphs 15, 16 and 17 of the report: "15. The legal position is well settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown. Vide Amritalal v. Surath Lal, AIR 1942 Cal 553 Appalaswami v. Suryanarayanamurthy, ILR (1948) Mad 440: (AIR 1947 PC 189 ). "16. In the case before us, it is not disputed that the acquisitions in the name of the first defendant's wife were made with funds advanced by him. As regards the acquisitions in the name of the third defendant and his minor son the sixth defendant also we find it reasonable to hold from the evidence, as regards the earnings of the third defendant and other circumstances, that for these acquisitions also money was paid by the first defendant. The question whether the joint family had at the time of each of these acquisitions sufficient nucleus from which the acquisition could have been made is therefore of great importance. "17. On a consideration of the evidence, as discussed below, we have come to the conclusion that it does not appear that the joint family had at the date of the acquisition made in the names of the first defendant's wife, his son, and his grandson sufficient nucleus from which these properties could be acquired. In coming to this conclusion we have taken into consideration the fact that family funds were spent in purchasing 14 acres of land mentioned in the name of the 5th defendant. ";