P.C.MALLICK, J. - (1.) THIS is a suit in which the plaintiff seeks to reopen a previous partition effected in 1920. The properties in suit along with a number of other properties belonged to one Dwarkanath Ghose. Dwarkanath Ghose died in 1892 after having published a will. By his will Dwarkanath created an absolute debutter in respect of two of his properties, namely, premises No. 40/1 and No. 41 Grey Street and bequeath the rest to his two sons Rajendra and Jogendra in equal share. Rajendra predeceased his father after having published a will. By his will, Rajendra appointed his brother Jogendra as the executor and bequeathed his properties to his four sons in equal shares subject to the payment of an excess amount to his youngest son Nagendra. His other sons are, Sidheswar, Bhupendra and Jnanendra. Jogendra applied for and obtained probate both of the will of his father Dwarkanath and of the will of his elder brother Rajendra. On 4 -9 -1909, Bhupendra, Jnanendra and Nagendra the three sons of Rajendra then alive instituted a suit in this Court against Jogendra and others for construction of the wills of Dwarkanath and Rajendra and for partition. This was suit No. 969 of 1909. This suit ended in a consent decree on 24 -11 -1910. By the consent decree the parties had the entire estate of Dwarkanath including the two premises No. 40/1, Grey Street and No. 41, Grey Street partitioned amongst themselves on the footing that the said two properties were also secular. By this decree, all the properties belonging to the estate of Dwarkanath were divided into two parts, one part including premises No. 40/1, Grey Street, was allotted to Jogendra and the other part which included premises No. 41, Grey Street was allotted to the three sons of Rajendra jointly. Sidheswar the only other son of Rajendra died long ago in 1903 leaving him surviving his widow, Padma Dasi, as his sole heir. The three sons of Rajendra subsequently in 1920 had the properties jointly allotted to them by the decree in Suit No. 969 of 1909 partitioned amongst themselves by one Kedarnath Ghose who was appointed arbitrator to effect the partition. Kedarnath's award is dated 12 -10 -1920, which was accepted by the parties in writing and was registered. To Nagendra was allotted premises No. 41, Grey Street subsequently renumbered No. 41/A, Grey Street. To Jnanendra was allotted premises No. 40, Grey Street and premises No. 86 Raja Baba Kissen Street. To Bhupendra was allotted premises No. 24/2, Nalin Sarkar Street, Padma Dasi was given no property but provision was made for her maintenance which: was charged on the properties allotted to the parties. It is recorded that the moveables have been divided amongst the parties. Only one item of joint property was not partitioned and this is the royalty payable in respect of the Rajendra jute mark from the packers. It was directed that it would remain joint property and the royalty realisable would be divisible among the three brothers equally. The property allotted to Bhupendra had since thereafter been sold in execution of a decree passed against him on 4 -5 -1923 and was purchased by Upendranath Sarkar and others. Nagendra mortgaged the properties allotted to him, for Rs. 4,500/ -. The mortgagee Snehalata enforced the mortgage and the property was ultimately sold on December 9, 1936 and purchased by Haricharan, Haripada and Durga Charan Dutts for Rs. 19,000/ -. There has been subsequent transfers made by the Dutts.
(2.) THE plaintiff Debendra is the only son ofNagendra who died sometime in June 1931. In1948 the plaintiff as the next friend of the familydeity Sri Sri Ishwar Sreedhur Jew instituted a suitin this Court being Suit No. 3379 of 1948 to establish the title of the deity in the premises No. 41/Aand 42 (formerly 40/1 and 41, Grey Street) whichwere created debutter by Dwarkanath but secularised by the consent decree in Suit No. 969 of 1909as previously stated. This suit was heard by H.K.Bose J. and by his judgment and decree dated 15 -6 -1950, the learned Judge dismissed the suit asagainst the heirs of Jogendra in respect of premisesNo. 42, Grey Street but declared premises No.41/A, Grey Street to be absolute debutter property of the deity. Bose J. held that the consent decree in suit No. 969 of 1909, the award made byKedarnath Ghose in 1920 and the various conveyances and mortgages so far as it affected premisesNo. 41/A. Grey Street were invalid, inoperativeand not binding on the deity. The judgment ofBose J. has been confirmed on appeal by the Appeal Court and subsequently by the Supreme Court.In the result, (sic)at at all material times the premises No, 41/A, Grey Street was andstill is debutter property notwithstanding the decree in the suit above referred to and notwithstanding the parties treating the same to be secular property. The present suit has been filed by the plaintiff, son of Nagendra, for partition of only such of the properties belonging to the parties as are still within the family. The defendants impleaded are Jnanendra and Labangalata, Nagendra's widow. It is pleaded that Bhupendra the other co -sharer has not been heard of since 1927. The transferees of the various properties allotted to Bhupendra and Nagendra have not been impleaded as defendants. It is pleaded that the award whereby partition was effected between the three sons of Rajendra are invalid, inoperative and is of no effect. This award purported to allot to Nagendra the properties which did not belong to the parties but belonged to the deity. The properties already alienated by the members of the family are alleged to be no longer capable of being partitioned and the only properties still left in the family are premises No. 40, Grey Street and premises No. 86, Raja Nabakissen Street allotted to Jnanendra by the partition of 1920. It is contended that these properties are still capable of being partitioned. The partition of the properties effected by the award of 1920 is contended to be invalid, inoperative and of no effect. It is alleged in paragraph 33 of the plaint that theplaintiff came to know of his rights on or about 16 -11 -1953 when judgment was delivered by the Supreme Court in Civil Appeal No. 201 of 1952 Certain declarations have been claimed, if necessary including a declaration that the award is invalid, inoperative and is of no effect and that the properties in suit jointly belong to the plaintiff and the defendant Jnanendra. It is also prayed that the award be cancelled and/or set aside. Jnanendra is contesting the suit and has filed a written statement. The substantial defence taken by him in his written statement is that ever since the award of 12 -10 -1920 each of the brothers, namely, Jnanendra, Bhupendra and Nogendra entered into possession of the properties allotted to each and ever since have been in possession of the properties so allotted as their own exclusively, openly and adversely to each other. It is also alleged that the partition effected by the award of 1920 is a perfectly good partition in law and the properties having already been partitioned, no second suit for partition lies in respect of the same properties. The suit is alleged to be barred by limitation. Pleas of non -joinder, estoppel, waiver and acquiescence have also been taken.
(3.) AT the trial the plaintiff tendered no oral evidence. The pleadings and judgments in Suit No. 2379 of 1948, the judgment of H.K. Bose J., the judgment of the Appeal Court delivered by the Hon'ble Chief Justice and the decree of the Appeal Court as printed in the Paper Book were tendered. The Wills of Dwarkanath and Rajendra, the consent decree in Suit No, 969 of 1909, the award of Kedarnath Ghose made on 12 -10 -1920 and an affidavit of Nogendra affirmed on 17 -5 -1936 printed in part 2 of the Paper Book were also tendered. Some other court records and documents have also been tendered.;