Judgment:
The Court : The plaintiff is the foreign branch of the Dutta family settled in England apparently since the late 1960s. The plaintiff is one of the six sons of Durgadas Dutta. The father of the first three defendants was the second son; the defendant no.4 is the third son; the predecessor in interest of the defendant nos.5 to 10 was the fourth son; the defendant no.11 is the fifth son; and, the predecessor in interest of the defendant nos.12 to 14 was the sixth son.
The plaintiff claims shares in all the family immovable properties and business interests. These have been particularized over three pages beginning page 38 of the petition in GA No.2423 of 2008.
The first application is for a Receiver and injunction in this partition and administration suit. The second application, GA No.1263 of 2010, is for a preliminary decree to be passed and for a Commissioner of Partition to be appointed. The defendant no.4 is represented. The other defendants are not represented even at the second call.
An affidavit affirmed by some of the other defendants has been forwarded to the plaintiff but no such affidavit has been filed in Court. The defendant no.4 says that of the eight immovable properties detailed at annexure-C to the petition (at pp38-39), only the first and third items are joint properties and the other six items are not joint properties.
The fourth defendant admits that the seven and a half cottah plot of land at Dr. Sundari Mohan Avenue in the Neatly area is a joint asset and he says that it is an empty land. The fourth defendant also admits that the land and building at 4/168, Gandhi Colony, Regent Estate, make up the family dwelling house in which the plaintiff is entitled to a share. As to the second item of immovable property, a ten bigha land of a family company, the fourth defendant says that such property was sold at a Court auction in the year 1993 following the company going into liquidation.
The fourth defendant says that the fourth property at Nachon Road, Benachiti, Durgapur, has been bequeathed under a Will of Durgadas to the fourth defendants wife. Probate of such Will, which dealt with some of the properties of the testator, has been obtained on April 17, 2001 from the District Delegate in Alipore. The fifth property, a land at Navapally in Benachiti, Durgapur, has, according to the fourth defendant, been bequeathed under the same Will of Durgadas to the wife of Durgadass now deceased son Hrishikesh. The plaintiff says that the defendant nos.2 and 3, who are the children of Hrishikesh have denied such bequest and the fourth defendants version should not be accepted.
However, since a probate in respect of the Will has been granted, till such time that the probate is revoked this Court cannot go behind the probate or into any allegations of impropriety in respect of either the Will or any bequests made there under. It is an admitted position that the plaintiff has applied for revocation of the grant of probate that was made on April 17, 2001. Such application is pending.
Since the immovable properties covered by the fourth and fifth items at page 38 are excluded from the joint family assets only by dint of their being included in a Will of which probate has been granted, in the event the probate is revoked, the plaintiff may apply for inclusion of such properties as part of the joint assets and for exercise of his rights in respect thereof.
The sixth property, another seven cottah land at Navapally, Benachiti, Durgapur, has, according to the fourth defendant, been gifted by a registered deed of gift of October 8, 1991 executed by Durgadass widow in favour of one or more sons of the fourth defendant. The fourth defendant says that Durgadass widow was the sole proprietor of such property and it was not part of Durgadass assets. Since such an assertion has been made, a copy of the relevant deed of gift will be made over by the fourth defendant to the plaintiff within a period of four weeks from date for the plaintiff to take whatever steps that the plaintiff may be advised in respect of such property.
The fourth defendant has also submitted that the seven cottah plot on Nachon Road, being the seventh head of property disclosed at page 38 of the petition, is absolutely owned by the sons of the fourth defendant and was acquired under a document executed on November 11, 1986. The fourth defendant will make over a copy of such document to the plaintiff within a fortnight from date.
The fourth defendant says that there is no residential house at City Center in Durgapur and the eighth property indicated at page 39 of the petition is imaginary. Since it is the admitted position that the Sundari Mohan Avenue land and the family dwelling house in Tollygunge are joint properties, the plaintiff is entitled to 1/6th share in both.
However, since the plaintiff insists that the other properties also need to be divided and there is a serious dispute as to whether the other properties belong to the parties or are part of the joint estate, such matters have to be assessed at the trial or, at any rate, at a later stage. In view of the dispute, no Commissioner of Partition can be immediately appointed though, if the plaintiff is willing, a Commissioner may be appointed over and in respect of the Sundari Mohan Avenue property and the Tollygunge dwelling house for partition thereof.
For the moment, Mr.Samantak Banerjee, Adv. is appointed Special Officer with a direction to make an inventory of the Sundari Mohan Avenue land described as the first item at page 38 of the petition relating to GA No.2423 of 2008.
The Special Officer will also ascertain as to who are in occupation of the several portions of the family dwelling house in Tollygunge covered by the third item at page 38 of the same petition. The Special Officer will be paid a remuneration of 800 GM and the expenses for the Special Officers visit will be borne by the plaintiff at the first instance. The Special Officer will file a report in the department within a week after the reopening of Court following the puja vacation and will thereupon stand discharged.
The fourth defendant says that he has filed a specific performance suit for Hrishikeshs share of the Sundari Mohan Avenue property in the Sealdah Court. There will be an order of injunction restraining the parties, whether by themselves or by their servants or agents or otherwise howsoever, from creating any third party rights in respect of the Sundari Mohan Avenue property detailed at item no.1 at page 38 of the petition and the family dwelling house at Tollygunge detailed at item no.3 of page 38 of the petition in any manner whatsoever without previous leave of Court.
The order of injunction will also apply to inter se transfers between the parties. No outsider will be given possession of any part of the family dwelling house without previous leave of Court. No further order is made on GA No.2423 of 2008 in view of the disputes relating to the immovable properties.
It is also recorded that the various business interests which have been indicated at page 40 of the petition either do not exist or they are run as self-owned concerns of some of the parties. For instance, there is a document that is appended to the plaint which demonstrates that Olympic Cycle Mart and Durgapur Supply Syndicate (items 1 and 2 of the family businesses indicated at page 40 of the petition) have been divided between the six brothers and branches such that the plaintiff, the fourth defendant and the widow of the youngest brother were to jointly run and manage Durgapur Supply Syndicate to the exclusion of the other branches and the other branches were to manage Olympic Cycle Mart to the exclusion of those who got Durgapur Supply Syndicate.
The fourth defendant says that Durgapur Supply Syndicate has since been dissolved by a deed of dissolution of March 31, 1985 to which the plaintiff is a party in the sense that at the relevant time the plaintiff had granted a power of attorney in favor of the fourth defendant on which basis the fourth defendant executed the dissolution on behalf of the plaintiff.
The fourth defendant says that the remaining businesses either do not exist or are the exclusive businesses of individual family members that require, at the very least, more protracted adjudication before being labeled as joint family assets. There will be no order as to costs in GA No.2423 of 2008. In GA No.1263 of 2001 the plaintiff has sought a preliminary decree and for a Commissioner to be appointed.
There will be a preliminary decree. The shares of the various parties are declared to be as follows : Plaintiff one-sixth Defendant nos.1 to 3 one-eighteenth each Defendant no.4 one-sixth Defendant nos.5 to 10 one-thirty sixth each Defendant no.11 one-sixth Defendant nos.12 to 14 one-eighteenth each Since the extent of the joint assets cannot be ascertained at this stage in view of the disputes noted above, save in respect of two of the properties that have been specified, no Commissioner or Receiver can be appointed over the other assets claimed to be part of the family assets.
It will be open to the plaintiff to take expeditious steps to bring the suit to trial. It will also be open to the plaintiff, upon obtaining revocation of the grant of probate relating to the Durgadass Will, to apply in this suit for inclusion of two of the properties that he has claimed to be part of the joint assets. GA No.1263 of 2010 is disposed of without any order as to costs. Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.