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PETITIONER: ANIL KUMAR MITRA & ORS.

       Vs.

RESPONDENT: GANENDRA NATH MITRA & ORS.

DATE OF JUDGMENT:       28/11/1996

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      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, Puddapukur  Road, P.S.  Bhowanipur, Calcutta-20  is the subject  matter of an endless litigation at four stages. Initially, the  property was  shared by two brothers Haridas and Gunendra  in equal shares. Haridas hypothecated his half share to  Rabindra Nath  Bose, who  had filed Title Suit No. 461/1927 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  was passed on  August 16,  1927 in  which Rabindra Nath Bose had purchased 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 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 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 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 partition of the half share had by Gunendra

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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 the trial Court and the High Court rejected the relief.      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 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 joint family and  joint family  continues to exist and, therefore, courts below  have committed  manifest error  of law  in not passing the  decree for  partition. 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 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 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,  the 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 as a  fact and  proved that after the preliminary decree was passed on  December 17, 1931 and both branches were reunited and Gundndra 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 these  circumstances, it cannot be held that the joint family continues  to exist  in  the  absence  of  which  the question  of   partition  does   not  arise.   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.