Tarun Kumar Gupta, J.@mdashBoth these appeals arose out of a common judgment and decree dated March, 30, 1961 passed by learned Subordinate Judge, Malda in Partition Suit No.69 of 1952. By the judgment impugned learned Judge of the Trial Court decreed the suit in part in preliminary form declaring the shares of co-plaintiffs namely Satya Charan Sarkar and Sabitri Sundari Sarkar together, contesting defendant No.1 Bipra Charan Sarkar and defendant No.4 Kadambini Sarkar as one-third each in the remaining Ejmali properties, that is, Ejmali Zamindari, Pattani and the Bastoo Bati at Maheshpur and at Puratuli. The parties were directed to effect amicable partition in respect of those joint properties within three months, with liberty to apply for a final decree in the event of failure to effect available partition.
2. The appellants of Appeal No.68 of 1962 namely Prabhati Roy and Arati Roy originally filed said partition suit praying for partition and accounts making following averments:
3. One Gouri Prasad Sarkar, predecessor-in-interest of the parties acquired valuable properties both movable and immovable as described in the Schedules of the plaint. He died leaving three sons namely Abhoy Charan, Bipra Charan and Bhairab Charan. Even after his death said sons lived in Ejmali and acquired further properties in their names as well as in the benam of their wives and children by utilizing Ejmali fund. Bhairab Charan died in 1340 B. S. (1933) leaving behind widow Kadambini Sarkar (defendant No.4) and a daughter Prabhati (plaintiff No.1) and a child in her mother''s womb. A daughter was born in Kartick, 1341 B. S. (October, 1934) naming Arati (Plaintiff No.2). Kadambini acquired a limited widow''s estate in respect of one-third share of her husband Bhairab. Abhoy Charan died in 1342 B. S. (1935) leaving behind two sons namely Satya Charan (defendant No.2) and Hari Charan. Hari Charan died in 1347 B. S. (1940) and his one-sixth share devolved on his mother Sabitri Sundari (defendant No.3). Kadambini (defendant No.4) surrendered her limited interest in favour of her daughters namely plaintiffs on 9th Chaitra, 1356 B. S. (22nd March, 1952) and confirmed the same by a notice dated 11th Chitra, 1358 B. S. (21st March, 1952). Abhoy Charan acted as ''Karta'' of the Ejmali estate upto his death in 1342 B. S. (1935) and thereafter Bipra Charan (defendant No.1) became the ''Karta'' of the joint family. Some properties were acquired with Ejmali fund in the name of some of the defendants. A house in the town of Malda at Mouza Pura Para was also constructed with Ejmali fund. The plaintiffs have been married with sons of Ashutosh Roy who happens to be a brother of Biroj Kamini, wife of defendant No.1. Bipra Charan (defendant No.1), Kadambini (defendant No.4) and the sons of Abhoy Charan separated in mess in 1349 B. S. (1943). By exercising undue influence some immovable properties together with a cash sum of Rs.8250/- were given to Kadambini by defendant No.1 but no accounts was furnished. A partition deed was obtained by Bipra Charan (defendant No.1) by misrepresentation. The partition deed was not acted upon. Plaintiffs were not also bound by the actions of their mother Kadambini (defendant No.4) prior to the surrender. As joint possession was found to be inconvenient plaintiffs asked for partition and accounts but in vain. Hence was the suit praying for partition and for accounts.
4. Defendant No.1, 5, 6 and 7 namely Bipra Charan, Biroj Kamini (wife of Bipra Charan), Biharilal (son of Bipra Charan), Motilal Roy (son of Puroshottom Roy) filed a joint written statement alleging as follows:
Gouri Prasad Sarkar died about 60 years back leaving behind little properties. His other two sons namely Abhoy and Bhairab never earned any money in their lifetime. Defendant No.1 Bipra Charan had separate earnings and improved the condition of joint estate. Many of the properties acquired with his personal income were thrown in the joint stock. Due to internal quarrels between some of the co-sharers'' parties separated in mess in 1346 B. S. (1939). Since then profits were divided into three shares. After the marriage of the plaintiffs their father-in-law Aushotosh became their advisor and pressed for partition of properties excluding the Zamindari and Bastoo Bati at Maheshpur. Accordingly, there was accounting and partition. Rs.8250.70/- was found due to each group of co-sharers and accordingly said amount was paid under proper receipt. The immovable properties were all partitioned in 1346 B.S. (1939) except the Zamindari and the Bastoo Bati at Maheshpur. The house at Malda is a self-acquired property of Bipra Charan (defendant No.1) and he gifted the same to his wife Biraj Kamini (defendant No.5). The allegation that some joint properties are still standing in the name of defendant No.1 and some other defendants is false. The plea of surrender of the interest of Kadambini (defendant No.4) in favour of plaintiffs was not admitted. The plaintiffs are bound by the partition deed. The suit was liable to be dismissed with cost.
5. Defendant Nos. 2 and 3 namely Satya Charan Sarkar and Sabitri Sundari Sarkar being son and wife of late Abhoy Charan filed a joint written statement alleging as follows:
The plea of surrender in favour of plaintiffs by their mother Kadambini (defendant No.4) was not genuine. The house of Puratuli at Malda town is an Ejmali property and is in joint possession of the parties. The parties agreed to effect the partition of the Ejmali khas land and movables in 1356 B. S. (1949) as Satya Charan Sarkar (defendant No.2) was then in need of money on account of his sister''s marriage and he having insisted for early payment the defendant No.1 Bipra Charan agreed to pay a sum of Rs.8250/- only if Satya Charan and his mother Sabitri Sundari Sarkar signed the partition deed. Those defendants were compelled to execute the partition deed in 1356 B. S. (1949) under said compelling circumstances though no accounts was submitted. However, the parties are in separate possession of the Jot lands in accordance with the partition deed and there is no reason for reopening the partition. The defendants, however, prayed for a partition of khas and movables after submitting accounts and also partition of remaining immovable properties. Subsequently, these defendants were transposed as co-plaintiffs. On the basis of the pleadings of the parties learned Judge of the Trial Court framed as many as sixteen (16) issues.
6. Both sides adduced oral as well as documentary evidence. On the basis of said evidence on record, both oral and documentary, learned Judge of the Trial Court came to the following findings:
(1) The plaintiffs failed to prove by cogent evidence the alleged surrender of interest of their mother Kadambini (original defendant No.4) in their favour and hence plaintiffs had no locus standi to file the suit for partition.
(2) In terms of a partition deed of 1346 B. S. (1939) (Ext. L) all movable and immovable properties except Ejmali, Zamindari, Pattani property and house including homestead etc. belonging to the parties were partitioned. Those unpartitioned immovable properties, as mentioned in the said partition deed (Ext. L) continued to be joint.
(3) After accounting each co-sharer was given a share of money which came around Rs.8250/-.
(4) There was no scope of further accounting or further partition of the properties which were already partitioned through partition deed (Ext.L).
(5) The house of Puratali at Malda standing in the name of Bipra Charan was a joint family property. Accordingly, learned Judge of the Trial Court passed the judgment impugned declaring shares of the parties with liberty to the parties to make amicable partition within three months from the date of judgment with liberty to apply for final decree in absence of amicable partition.
7. Though original plaintiffs being aggrieved with impugned judgment and decree filed appeal being No.68 of 1962, but at the time of hearing none appeared for them. However, learned Advocate for heirs and legal representatives of Bipra Charan Sarkar (appellant of appeal No.756 of 1961) and learned advocate for added plaintiffs namely Satya Charan Sarkar and others as respondents appeared and made submissions.
8. During hearing learned advocates of both sides restricted their arguments only on the point as to whether the house at Puratuli at Malda standing in the name of Bipra Charan was joint property or not. In other words, it was not challenged during hearing of the appeal the other findings of learned Trial Court. As such, these appeals have boiled down only to a limited point as to whether the dwelling house at Puratuli at Malda Town standing in the name of Bipra Charan was self-acquired property of Bipra Charan or a property purchased in the benam of Bipra Charan from the money of joint family fund.
9. It is a settled principle of law that proof of existence of the joint family does not lead to the presumption that the property held by any member of the family is joint and the burden lies upon the person who asserts the same to be the joint family property. But, where it could be established by proper evidence that the joint family possessed some joint properties which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, then burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the joint family property.
10. It came out from evidence on record as follows:-
(1) The house at Puratuli in Malda town was purchased in 1344 B. S. (1938) when the parties were admittedly joint in mess and property.
(2) At that time Bipra Charan in whose name the property was purchased was the ''Karta'' of the joint Hindu family.
(3) The joint family at the relevant time had huge landed properties as well as money lending business which was running from the time of their predecessor-in-interest namely Gouri Prasad Sarkar. The joint family estate had nearly 100 bighas of Jot land besides Zemandari and Pattani.
(4) Joint family property had sufficient money for purchase of said dwelling house at Puratuli at Malda Town.
(5) Though Bipra Charan worked as ''Gomosta'' for certain period but his personal income was meagre.
(6) There was a trend of purchase of various properties in the benam of individual member of the joint family at different point of time from joint family fund.
11. In this connection, Sri Sarojendranath Das Majumder learned advocate for the defendant No.1 Bipra Charan has submitted that as per written statement as well as evidence adduced by the respondent added plaintiffs, all the properties standing in the benam of different family members were already partitioned through the earlier partition deed (Ext.L). According to him the fact that the residential house at Puratuli in Malda town standing in the name of Bipra Charan was not partitioned, goes to show that said house was purchased from the self-acquired money of Bipra Charan and not from the joint family fund.
12. In this connection he has further submitted that Bijan Behari Palit (D.W.1) and Satya Charan Sarkar (D.W.3) tried to make out a case that as said residential house at Puratuli in Malda town was purchased from joint family fund, family members of other co-sharers were present in the ''Griya Prabesh'' ceremony but their evidences on this score were contradicting. In this connection, he has further submitted that in terms of the partition deed the Bastoo Bati Adi meant the ancestral house at Maheshpur along with other properties left unpartitioned and that the residential house at Puratuli Bazar in Malda town was not included in the list of properties to be remained unpartitioned in said partition deed. In this connection, he has referred to the Samsad Bengali to English Dictionary wherein "Bastoovita" was described as a permanent and usually ancestral homestead. According to him said residential house at Puratuli Bazar at Malda town was purchased from the self-acquired money of Bipra Charan in 1344 B. S. (1938) and construction thereof started on and from 1940 by using the personal money of Bipra Charan and that it was mutated in the name of Bipra Charan in the local municipality and that all these things go to show that it was personal property of Bipra Charan and not joint property.
13. Sri Hrishikesh Chatterjee, learned Advocate for respondent added plaintiffs, on the other hand, has submitted that at the relevant time Bipra Charan was acting as the ''Karta'' of the joint family and that being ''karta'' he purchased said residential house at Malda town in his own name using joint family fund. In this connection he has referred to the ''khatas'' which were recovered from the house of the parties by making inventory through an advocate wherefrom it came out that there were several entries in said ''khata'' to show that expenses were made from joint family fund for purchase as well as for construction of said residential house at Malda Bazar. He has further submitted that though said inventory was made in the absence of Abhoy Charan for fear of making obstruction by him but it was made in presence of an independent lawyer as per direction of learned Court. In this connection, he has further submitted that as per admitted partition deed (Ext.L) some landed properties including Bastu Bati Adi remained joint as before and that words "Bastu Bati Adi" included both the residential house at Maheshpur as well as the residential house in Malda Town.
14. We find that Bijan Behari Palit (D.W.1) who was the family lawyer of the parties deposed as D.W.1 in support of the added plaintiff''s case that the residential house at Puratuli Bazar in Malda Town was purchased from the joint family properties but in the name of Bipra Charan being ''karta''. He is an independent witness and we find no error on the part of the learned Judge of the Trial Court to give reliance on his evidence. It appears from the judgment impugned that the learned Judge of the Trial Court painstakingly examined the evidence on record, both oral and documentary, and came to the positive findings that the residential house at Puratuli in Malda Town was purchased from the joint family money in the name of the ''karta'' Bipra Charan and that it was a joint family property.
15. In this connection, it is pertinent to note that neither the ancestral homestead of the parties at Maheshpur nor the Puratuli house at Malda Town was specifically mentioned in the deed of partition as properties to remain unpartitioned. What is stated in the partition deed is that Bastu Bati Adi remained joint property as before. ''Adi'' means ''et cetera''. As per Biswas''s Encyclopedic Law Dictionary (second edition) "when a list of things is given and the list concludes with the general words like ''et cetera'', the meaning of the general words is restricted to things of the same class as those which are contained in the list." If we apply said law dictionary meaning of the word ''et cetera'' in the present context then Bastu Bati Adi includes both the house at Maheshpur as well as Puratuli. Besides ancestral house at Maheshpur there is no house other than the house at Puratuli in Malda Town. The word ''Adi'' after the word ''Bastubati'' would not have been used in the partition deed if the makers of the partition deed did not intend to include Puratuli house in Malda in the list of unpartitioned property of the parties. From the entire evidence on record, both oral and documentary, as well as from the circumstances as stated above it is apparent that Puratuli house at Malda Town standing in the name of Bipra Charan, the then ''karta'' of the joint family, was purchased from the joint family fund and was a joint property and was kept unpartitioned along with some other immovable properties as per earlier partition deed (Ext.L). If that be the position then the judgment impugned does not call for any interference from this end. Accordingly both the appeals stand dismissed. The impugned judgment and decree stand confirmed. However, we pass no order as to costs. Urgent photostat certified copy of this judgment be supplied to the learned Counsels of the party / parties, if applied for.
Subhro Kamal Mukherjee, J.
16. I agree
