Moushumi Bhattacharya, J. - (1.) The present appeal is from a judgment and decree dated 5th July, 2017 on an application filed by the respondent no.1 for final decree in a partition suit. The respondent no.1 is the defendant no.1 and the appellants are two of the plaintiffs in the suit which was filed on 14th September, 1973 for a decree for partition of six immovable properties involving premises located at Manicktalla Main Road, Calcutta-54. The prayers in the plaint were, inter alia, for allotment of the properties to the plaintiffs according to their respective shareholding.
(2.) The suit is for partition of the properties of late Kristo Mohon Mullick who died intestate on 5th April, 1936 leaving his wife Gouribala Mullick and five sons Kedarnath Mullick, Dwarkanath Mullick, Kashinath Mullick, Lokenath Mullick and Somnath Mullick, each having a share of the properties which consisted mainly of 237-P/1B, Manicktalla Main Road/Satin Sen Sarani (consisting of the dwelling house), 237-P/1C, Manicktalla Main Road, 245/1, Manicktalla Main Road, 245B, Manicktalla Main Road and 246B, Manicktalla Main Road. The parties interested in the properties of Kristo Mohon Mullick would be clear from the diagram below, as given in the plaint in Suit No.438 of 1973. TABLE NOT FOUND The percentage of shares held by the co-sharers in 1973 is as follows: Names and the respective shares of the PLAINTIFFS and DEFENDANTS Originally in the C.S. No.438 of 1973 and G.A. No.3325 of 2008 in the Hon'ble High Court at Calcutta are as follows: JUDGEMENT_70_LAWS(CAL)5_2018_1.html Since some of the parties died, the respective heirs of the deceased included the following persons as legal heirs having percentage of shares and interest as in August, 2009 is shown below: JUDGEMENT_70_LAWS(CAL)5_2018_2.html Jogmaya Mullick and Durga Mullick are the heirs of late Kedarnath Mullick, being his wife and daughter respectively. After Jogmaya Mullick died in September, 2007, Durga Mullick became entitled to 1/6th share of the late Kedarnath Mullick.
(3.) Dwarkanath Mullick died intestate in August 1957; his wife Parbati Mullick passed away leaving her son Souren Mullick (appellant No.2) and two daughters Sabita Mullick and Jyotsna Dutta. As a result, 1/6th share of late Dwarkanath Mullick devolved unto Parbati Mullick (since deceased), Souren Mullick, Jyotsna Dutta, Sabita Mullick and Gouribala Mullick (mother of Dwarkanath Mullick) in equal shares each having 1/38th share in the estate. After Parbati Mullick died, her share devolved unto Souren Mullick, Jyotsna Dutta and Sabita Mullick in equal shares as a result of which they held 2/15th share of the estate. Kashinath Mullick sold his undivided share in 245/1, Manicktalla Main Road, 21 Harihar Mullick (respondent No.9 herein). Lokenath Mullick inherited 1/6th share in the estate of Kristo Mohon Mullick. Somnath Mullick became entitled to 1/6th share in the estate of Kristo Mohon Mullick. On the death of Gouribala Mullick, his mother who, on the date of her death in December 1982, held 1/6th share from her husband and another 1/30th share inherited on the death of her son, Dwarkanath Mullick, and therefore held 1/5th of the total share in the estate. The events subsequent to filing of the suit are of some significance: By consent to the parties, a preliminary decree was passed in the suit in September, 1973 declaring the shares of the parties and incorporated a term which read as follows: "The Commissioners of partition shall divide and allot the properties to the respective parties according to their respective shares and interests stated in paragraph 1 hereof. In allotting properties to Gouribala Mullick the defendant No.2, the Commissioners of Partition should include a suitable portion of the dwelling house. The Commissioners of Partition shall have power to award owelty for the purpose of equalizing the value. In case of difference of opinion between the Commissioners of Partition the decision of Mr. R. Mullick will be final and prevail".;