ANIL KUMAR MITRA AND ORS.versusGANENDRA NATH MITRA AND ORS.

A                      ANIL KUMAR MITRA AND ORS.
                                          v.
                    GANENDRA NATH MITRA AND ORS.

                               NOVEMBER 28, 1996

B               [K. RAMASWAMY AND G.T. NANAVAT!, JJ.]

         Hindu Law-Joint family property-Suit for partition and separate pos'.
  session-Preliminary decree-Joint family status severed after passing of
  preliminary decree-Held, after preliminary decree was passed the joint family
C status existing prior to the date came to a temzinus and, therefore, there is no
  presumption thereafter that joint family status continued-Continuance of
  joint family after partition could be infe1red from the conduct and treatment
  meted out by members to the joint family property-It must be pleaded as c
  fact and proved that after the preliminary decree was passed both branches
  were reunited and had blended the share in the joint family property and the
D parties treated and enjoyed it in that character as joint family property-In
  this case 110 such proof was on recor~Therefore, it cannot be held that the
  joim family colltinued to exist.

           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2007 of
E 1989.
         From the Judgment and Order dated 29.4.88 of the Calcutta High
    Court in FA. No. 52 of 1978.

          Arun Prakash Chatterjee, Ratna Bhattacharjee and P.K. Chakraborty
F   for the Appellants.

          Amarendra Nath Dawn and Mrs. Dipti Choudhary for the Respon-
    dents.

           The following Order of the Court was delivered :
G
          This appeal by special leave arises from the judgment of the Division
     Bench of the Calcutta High Court, made on April 29, 1988 in Original
     Decree No. 52/78.

           This case has a chequered history. The property bearing No. 10-D,
H Puddapukur Road, P.S. Bhowanipur, Calcutta - 20 is the subject matter of
                                         338
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                         AK MITRA v. G.N. MI1RA                            339

an endless litigation at four stages. Initially, the property was shared by two   A
brothers Haridas and Gunendra in equal shares. Haridas hypothecated his
half share to Rabindra Nath Bose, who had filed Title Suit No. 130/1927
for foreclosure of mortgage and a preliminary decree therein was granted
on April 7, 1927. A decree for a sum of Rs. 9,222 was passed. Since the
amount was not paid the property was brought to sale and a final decree           B
was passed on August 16, 1927 in which Rabindra Nath Bose had pur-
chased the half share of Haridas. A sale certificate in that behalf was given
on February 22, 1928.

        It would appear that Gunendra a minor represented by his mother
 Sailabala, filed Title Suit No. 13 of 1929 which was ultimately compromised C
by Sailabala and Rabindra Nath Bose by compromise decree dated July
17, 1929 in which she received certain amount, the details of which are not
 material. Thereafter, Rabindra Nath Bose filed Title Suit No. 69/1928,
 which was renumbered as 128/1929, for partition and separate possession
 of his half share purchased by him towards the share of Haridas. A D
 preliminary decree in that behalf was passed on December 17, 1931 and a
final decree was also passed on July 18, 1934 in which Plot No. A was
 allotted to Gunendra, represented by his mother Sailabala and a sum of
Rs. 5,000 in addition was given. Thus, it could be seen that the joint family
status of Haridas and his brother Gunendra had come to be severed after E
passing of the preliminary decree on December 17, 1931. Another Title
Suit No. 71/1965 filed by the appellants in the court of Fourth Subordinate
Judge at Alipore for partition of the properties had by Sailabala with
Rabindra Nath Bose claiming that it was a joint family property and the
consideration for discharge of the mortgage with the Rabindra Nath Bose
had passed on from the joint family property. Therefore, they claimed for F
partition of the half share had by Gunendra at a partition action laid by
Rabindra Nath Bose in the partition Title Suit No. 129/1929. The question .
is: whether the appellants can claim partition of the share had by
Gunendra, represented by his mother Sailabala, as guardian. Both .be trial
Court and the High Court rejected the relief.                                 G

      Shri Arun Prakash Chatterjee, learned counsel appearing for the
appellants, contends that the High Court has found that the respondents
have not proved their capacity to purchase the property after paying
consideration for discharge of the mortgage debt and, therefore, in the H
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    340                   SUPREMECOURTREPORTS [1996] SUPP. 9S.C.R.
A absence of their proof of capacity to discharge the debt, it must necessarily
  be construed that the consideration had flown from the joint family. It is
  also contended that there is no proof of the severance of the status of the       I
  joint family and joint family continues to exit and, therefore, courts below
  have committed manifest error of Jaw in not passing the decree for parti-
B tion. We find no force in the contentions. We requested the learned
  counsel to read out from the plaint whether there is any averment made in
  the plaint, viz., any averment or issue raised after the final decree was
  passed in Title Suit No. 128/1929 and whether there is any reunion of the
  members of both the branches and whether the share had by Gunendra
  was blended so as to be treated as Joint family property. Learned counsel
C sought to read out to us the plaint as amended and sought to contend that
  it gives the indication that they remained to be members of the joint family
  and, therefore, that gives a clue that joint family continued to exist. We fail
  to appreciate the stand taken by Shri Arun Prakash Chatterjee. After
  preliminary decree was passed in Title Suit No. 128/1929, the joint family
D status existing prior to the date came to a terminus and, therefore, there
  is no presumption thereafter that both Haridas and Gunendra continued
  to be members of the joint family. It is true that by the acts of the parties
   that even after the previous partition, they continued to be members of the
  joint family. But it should be by conduct and treatment meted out to the
   properties by the members of the family in this regard. It must be pleaded
E as a fact and proved that after the preliminary decree was passed on
   December 17, 1931 and both branches were reunited and Gunendra
   through his mother had blended the share had in final decree in the joint        .
   family property, the parties treated and enjoyed it in that character as joint
   family property. Unfortunately, there is no such plea nor proof. Under
F these circumstances, it cannot be held that the joint family continues to
   exist in the absence of which the question of partition does notaries. Under
   these circumstances, we do not find any illegality in the decree passed by
   the trial Court as affirmed by the High Court.

           The Civil Appeal is dismissed. No costs.
G
    T.N.A.                                                    Appeal dismissed.