Purna Chandra Khanra vs Nanda Sundari Dassi

Das, J.—F.A. 37 of 1947 is at the instance of Defendants Nos. 7, 7ka and 7kha. F.A. 108 of 1947 is at the instance of the Plaintiff. They both arise out of the same suit for partition. In order to appreciate the controversies between the parties it is necessary to set out a short family pedigree. One Swarup died in 1916-17, leaving him surviving his two sons Sarada and Nepal. He had two other sons. Gadadhar and Haripada, who predeceased him. Sarada''s son is Mahadeb, who is Defendant No. 1 in suit, Sarada being dead. Nepal died before the suit and was survived by four sons. Badan, Tinkarhi, Atul and Gopal. Badan died leaving a widow, Pyari, who is Defendant No. 6 and a son Tarak, who is Defendant No. 5. Tinkarhi, Atul and Gopal are, respectively, Defendants Nos. 2, 3 and 4. Gadadhar''s sons are Kali Krishna and Purna. Kali died leaving as his heirs Durjodhan, Khudiram, Satish, Gour and Nitai, Defendants Nos. 8, 9, 10, 11 and 12. Krishna died leaving a widow Manada, who is the Plaintiff in the suit. Purna is Defendant No. 7. Purna''s wife is Pramadamoyee, who is Defendant No. 7ka. His son is Madhusudan, who is Defendant No. 7kha. Haripada''s widow is Kumudamayee, who is Defendant No. 13. The properties, which were originally included in the suit for partition, were described in schs. ka, kha and ga of the plaint. Schedule ka of the plaint, as originally framed, belonged to Swarup. Schedule kha of the plaint was alleged to be the joint movable properties of the Plaintiff and Defendant No. 7. Schedule ga of the plaint comprises two plots; plot No. 1 was alleged to have been acquired for the joint family consisting of Krishna and Purna in the name of Purna''s wife Pramadamoyee, Defendant No. 7ka. Schedule ga (2) was alleged to have been acquired, in the name of Madhusudan, Defendant No. 7kha ben�mi, for the joint family consisting of Krishna and Purna. On these allegations, the Plaintiff claimed one-sixth share of the properties in sch. ka, half share in sch. kha and sch. ga. The shares of Defendant No. 1 and Defendants Nos. 2 to 6 in sch. ka were stated to be one-third each. The Plaintiff prayed for a partition of her one-sixth share in sch. ka and a half share in schs. kha and ga. There was also a prayer for accounts. To this suit, several written statements were filed by Defendants Nos. 7, 7ka, 7kha, 8 to 12, 13 and 2. For the purposes of this appeal, it is not necessary to set out the substance of the written statements of the different Defendants. I shall refer to them at the proper time. The suit was instituted on May 27, 1944. The suit was taken up for hearing on October 31, 1946. On that date the Plaintiff Manada was examined in part, and the suit stood over till November 1, 1946, On that date, on behalf of the Defendants, a prayer was made for decision of issues Nos. 3 and 4, which related to misjoinder of parties and causes of action. The Subordinate Judge was of the opinion that the suit was bad on the ground of misjoinder of parties and causes of action and that it was not permissible for the Plaintiff to lump together in one suit a prayer for partition of sch. ka in which all the Defendants were interested and of sch. ga, in which only some of the Defendants were interested. As a result of his decision, he directed the Plaintiff to elect in respect of which schedule or schedules of properties the Plaintiff will proceed and against which of the Defendants the suit will proceed. Thereafter, on the following day, the Plaintiff filed a petition for amendment of the plaint. The amendment prayed for was that the Plaintiff wanted to substitute a different sch. ka, including only the properties which had been allotted to Gadadhar''s line on an amicable division between the sons of Swarup, for convenience of enjoyment and she prayed for expunging the names of Defendants Nos. 1 to 6 and Defendant No. 13. The Subordinate Judge rejected this prayer for amendment by an order dated November 7, 1946. The Plaintiff filed a petition on the same day, expressing her election to limit the suit to the properties described in schs. kha and ga of the plaint. The court made an order on the same day in terms of the election made by the Plaintiff. An objection raised by the Defendants as regards the court-fees to be paid on the plaint was left over till delivery of judgment. The parties then led evidence on the plaint, as it stood after the election made by the Plaintiff. By this judgment, dated November 28, 1946, the Subordinate Judge passed a preliminary decree for partition as against Defendants Nos. 7, 7ka and 7kha and Defendants Nos. 8 to 12. The preliminary decree related to the properties in sch. ga and to certain moveables in sch. kha, namely, 76 maunds of paddy, 40 maunds of potatoes, 1 khans of straw, items Nos. 5 and 6 of Ex. 1, the final report of the commissioner, and to two mats mentioned in item No. 7 of Ex. 1. The claim as regards two tarpaulins and a calf was disallowed. The Plaintiff''s share was declared to be one-third. As I have already said, Defendants Nos. 7, 7ka and 7kha have preferred an appeal. Another appeal has been preferred by the Plaintiff. Dr. Sen Gupta, appearing for the Plaintiff in F.A. 108 of 1947, raised two preliminary points in his appeal because a decision on these points in his favour might render unnecessary a discussion of the other points raised in both the appeals. I shall first deal with two preliminary points raised by Dr. Sen Gupta.

In the first place, Dr. Sen Gupta contended that the Subordinate Judge was wrong in directing the Plaintiff to elect as between the different schedules in the plaint and as regards the persons against whom the suit would proceed. Dr. Sen Gupta contended that the suit, as originally framed, was perfectly competent. In order to decide this point, it is necessary to state shortly the allegations made by the Plaintiff in her plaint, as regards schs. ka, kha and ga. The Plaintiff''s allegation is that sch. ka belonged to Swarup and that on Swarup''s death Kali, one of his sons, relinquished his share in sch. ka on receipt of some consideration, that the lands of sch. ka were divided between the different branches of Swarup''s descendants for purposes of convenient enjoyment, although there was no formal partition. As regards sch. kha, the allegations was that these were joint moveable properties. As regards sch. ga, it was stated that these were acquired by Defendant No. 7 in the ben�mi of his wife, Defendant No. 7ka and his son, Defendant No. 7kha, but the purchase was in fact for the benefit of the Plaintiff and Defendant No. 7, Defendants Nos. 7ka and 7kha being mere ben�md�rs. It is obvious, therefore, that on the allegations in the plaint, sch. ka comprised lands in which the Defendants other than Defendant No. 7 and the Plaintiff are interested. The lands in sch. ga were properties in which the Plaintiff and Defendant No. 7 are solely interested. The effect of this is that there is no community of interest between the parties to the suit as regards the lands of schs. ka and ga. In other words, the lands of sch. ka represent the estate of Swarup which devolved on his descendants whereas the lands of sch. ga represented the estate of the Plaintiff and Defendant No. 7. There are, therefore, in fact two different estates in which the Plaintiff is claiming a partition. The cause of action for a partition of sch. ka is, therefore, distinct from the cause of action for partition of sch. ga. If we are to decide the question of misjoinder of parties and causes of action on the terms of Order I, Rules 3, 4 and 5 and Order II, Rule 3 of the Code of Civil Procedure, it must be held that there is no common question of fact or of law as regards the lands of schs. ka and ga. A joinder of the said two causes of action in respect of schs. ka and ga would not be permissible. Ramendra Nath Roy v. Brajendra Nath Doss ILR (1917) Cal. 111. The question, whether in a suit for partition, the Plaintiff is permitted to include in the plaint also the properties in which some of the Defendants only are interested, has been answered in the negative in a long series of decisions of this Court. Dr. Sen Gupta referred us to the decision in the case of Radha Kanta Shaha v. Bipro Das Roy (1904) 1 C.L.J. 40, Kailash Chandra Das v. Nityananda Das (1909) 11 C.L.J. 384; and Sris Chandra Datta Chaudhuri v. Mahim, Chandra Datta Chaudhuri (1915) 23 C.L.J. 231. He did not dispute that these decisions proceed on the footing that a Plaintiff, in a suit for partition, is not required to include in the subject-matter of the suit properties in which some of the parties to the suit for partition are interested. He contended, however, that these cases are distinguishable from the facts of the present case. In his submission, there is no bar to the Plaintiff claiming, in a suit for partition, a partition of certain lands which are held by some of the co-sharers by virtue of an amicable arrangement, as also of certain other lands which are held by all of them as co-owners. In my opinion, there is no foundation for this submission. A suit for partition proceeds on the ground of joint ownership of the parties to the suit for partition. The view contended for, if accepted, would mean that the decree in the suit for partition would be liable to be re-opened after the other co-owners who hold other lands under an amicable arrangement, institute a suit for partition and obtain a decree, the effect whereof may disturb the convenient enjoyment as agreed upon between the co-owners. In my opinion, the rule is now firmly established in this Court that, in a suit for partition, the only properties which can be included are those in which all the co-owners are interested. The principle underlying this rule was discussed at some length by Mookerjee J. in the case of Sris Chandra Datta Chaudhuri v. Mahim Chandra Datta Chaudhuri (supra). Dr. Sen Gupta referred us to a decision in the case of Haran Sheikh v. Ramesh Chandra Bhuttacharjee (1920) 25 C.W.N. 249. That was a case where a servient owner had not been impleaded in a suit for enforcement of a right of easement. In my opinion, that case does not throw any light on the question now before us. The Subordinate Judge was, therefore, right in requiring the Plaintiff to make her election. The first contention raised by Dr. Sen Gupta must, therefore, be overruled.

Dr. Sen Gupta next contended that the Subordinate Judge was in error in refusing the prayer for amendment made by the Plaintiff. I have already set out the substance of the prayer for amendment. The prayer for amendment proceeds on the assumption that the substituted sch. ka was allotted to the branch of Gadadhar. In the original plaint, the Plaintiff expressly stated that there was no partition among the descendants of Swarup. The enjoyment by Gadadhar''s branch of certain properties in sch. ka was merely for convenient enjoyment. The effect of the amendment would be to introduce a case which is inconsistent with the case made in the plaint as originally filed. It is well-settled that an amendment should not be allowed where the effect of the amendment would be to introduce a totally new and inconsistent case and would substitute one cause of action for another or change the character of the suit. In my opinion, the Subordinate Judge was right in not allowing the plaint to be amended as prayed for. The two preliminary contentions raised by Dr. Sen Gupta must, therefore, be overruled.

We have, therefore, to deal with the merits of the two appeals. This would be on the footing that the plaint was limited to the properties described in the schs. kha and ga.

Mr. Apurbadhan Mukherji, appearing for Defendant Nos. 7, 7ka and 7kha, first submitted that the suit, so limited, was not maintainable as a mere suit for partition. He based this contention on two grounds. In the first place, he contended that in the suit, so limited, the title to sch. ga was disputed by Defendants Nos. 7ka and 7kha, who are not members of the joint family, consisting of the descendants of Gadadhar. They set up a paramount title. As such, their right to the property claimed should not be determined in a simple suit for partition. The proper remedy for the Plaintiff was to institute a suit for declaration of title and for possession on a partition. Conceding that this contention is correct, this would only mean an amendment of the plaint. In the prayer portion of the plaint, the Plaintiff prayed for a partition on declaration of her specified share. Such an amendment, if so prayed for, could have been granted on terms. The effect of this contention would not, therefore, mean a dismissal of the suit. In the second place, the contention as raised, in the broad form, is not correct. In the present case the Plaintiff alleged that Defendant No. 7 was her co-sharer in sch. ga lands, and that the properties purchased in the names of the wife and son of Defendant No. 7, namely, Defendants Nos. 7ka and 7kha, were merely ben�mi purchases for the benefit of the Plaintiff and Defendant No. 7. In other words, the averment is that the purchased properties are also the joint properties of the Plaintiff and Defendant No. 7. The question is whether a suit for partition on these allegations is maintainable or not. The plaint does not allege that any adverse claim was made by Defendant No. 7ka or Defendant No. 7kha prior to the suit. It is true that Defendants Nos 7ka and 7kha, in their written statement, disputed the Plaintiff''s claim and set up their own independent right. Issues were joined on the question of title so raised by Defendants Nos. 7ka and 7kha. They did not pray for being dismissed from the suit. They led evidence and the court came to a decision adversely to them. In these circumstances, in my opinion it does not lie in the mouth of Defendants Nos. 7ka and 7kha at this stage to ask the court to dismiss the suit on the ground that the suit, being framed as a suit for partition, an adjudication of their adverse title could not be made. Reference was made by Mr. Mukherji to an unreported decision of this Court in the case of Pramila Ray v. Chandi Bala Dasi (1950) Appeal from Appellate Decree No. 1434 of 1947, decided on July 24. In that case, the courts below did not decide the title set up by the adverse claimant. The courts below refused to adjudicate on their objection to this claim of title. This Court decided that the view taken by the court below was correct. This Court seemed to be of the opinion that the matter was covered by an earlier decision of this Court in the case of Annapurna Debya v. Golapmani Debya (1922) 35 C.L.J. 530. I shall refer to the passage relied on, after I have set out the facts which were in controversy in the above case. In that case, one Girish executed a will on November 24, 1899. By his will, he bequeathed his properties to his widow Golapmani and his three sons, Haripada, Tarapada and Hem Chandra in equal shares. He then died leaving him surviving his widow Golapmani, Haripada, Tarapada and Hem Chandra. Haripada died in 1916, leaving a widow Annapurna. Golapmani started a partition suit on the allegation that, by the will, Golapmani and her three sons had got equal shares. She further alleged that Haripada had adopted as his son Amiya who was his nephew and that the effect of the adoption was that on Haripada''s death, Amiya had inherited Haripada''s one-fourth share. This was disputed by Haripada''s widow, Annapurna, who denied the adoption and claimed one-fourth share as her own. The Subordinate Judge made a decree for partition declaring one-fourth share of Golapmani, Tarapada and Hem Chandra and one-fourth share of Annapurna or Amiya. Annapurna preferred an appeal to this Court and, on her behalf, it was contended that the Subordinate Judge ought to have decided the title to the one-fourth share claimed by Annapurna as her own in her own independent right. In his judgment, Mookerjee J. first proceeds by saying that, in a suit for partition, the court, being a court of general jurisdiction, is competent to decide disputed or doubtful questions of title, if raised by any of the parties to the suit. The learned Judge then proceeds to state that if any joint property stands in the name of a female or of one of the co-sharers and either the female or the co-sharer in whose name the property stands claims the same as her or his own, the court is competent to determine this question. The learned Judge then deals with the argument that this procedure may lead to inconvenience, because it would require a stranger to the family, to participate in the suit for partition even as regards matters in which he is not interested. The learned Judge overrules this argument by saying that this inconvenience may be got over by directing successive trials of different issues at different stages. The learned Judge then deals with the question which was before him and holds that, where there is conflicting claim, to a share in the land under the same right under which partition is sought, the determination of the conflict is incidental to the partition and cannot be avoided before partition is decreed. It is true that, in the case before the learned Judge, no decree for partition could have been passed, unless the title to the one-fourth share was adjudicated upon between the conflicting claims. The principles, however, which are enunciated by the learned Judge in arriving at his conclusion are quite general. In a suit for partition the court is required to determine the joint properties as also the co-sharers in those properties and the shares claimed by the co-sharers. If the Plaintiff alleges that a certain property stands in the name of a non-member who is a ben�md�r for the joint family, in order that the partition decree might include all the joint properties, an adjudication on the Plaintiff''s claim, that the said property is joint property, is necessary in the presence of the alleged ben�md�rs. A suit for partition must include all joint properties. There is no inherent want of jurisdiction in a court deciding a partition suit to adjudicate on this matter. The mere fact that a joint property stands in the name of a non-member does not oust the jurisdiction of the court to decide the question of title, if the title of the joint family to this property is disputed by the non-member. This question did not require decision in the case before the learned Judge. The learned Judge expressly reserved his opinion on the question whether a claimant who has no community of interest with the parties to the suit and is in no way a co-tenant with them but stands on his own independent right and denies all rights of his adversary can be drawn into a partition suit for decision of his paramount title. In the unreported case (supra) this reservation was taken to be an expression of opinion in favour of such reservation. The case of R. Nilakanta Iyar v. Ramanarayana Iyer AIR [1949] (Mad.) 410 was a decision of a single Judge. The decision proceeded on the ground of misjoinder of parties and causes of action. It also misconstrued the effect of the reservation made by Mookerjee J. in the case of Annapurna Debya v. Golapmani Debya (supra). In my opinion, the suit cannot be said to be incompetent merely because Defendants Nos. 7ka and 7kha, who were alleged to be ben�md�rs for the joint family asserted a paramount title.

Mr. Mukherji next submitted that the suit was not maintainable, as the Plaintiff had been excluded from the said properties. The Subordinate Judge was of the opinion that there was no ouster of the Plaintiff. It does not appear from the evidence of Defendant No. 7 that he ever refused to give the Plaintiff her share of the joint lands. Defendant No. 7 merely stated that he consumed the produce of that land for the last five or six years. Reliance was placed on the statement of the Plaintiff herself in cross-examination, where she stated that she was driven out by Defendant No. 7, three or four years before, when she demanded her share. This statement is contrary to her statement in her examination-in-chief. As the Judge points out, she was an illiterate lady and made a confused statement in cross-examination. In my opinion, the evidence does not show that the Plaintiff was excluded from the joint family. No question of payment of court-fees therefore arises and the suit was maintainable as framed. As I have already said, even if it was not maintainable as a suit for partition, the Plaintiff could have had the plaint amended by converting it into a suit for possession on declaration of title and for partition.

Mr. Mukherji next contended that the view taken by the Subordinate Judge that the properties claimed by Defendants Nos. 7ka and 7kha were not proved to belong to the ostensible purchasers was erroneous and proceeded on a misconception of the burden of proof in such cases. The Subordinate Judge first starts by saying that the burden lies on the Plaintiff to prove her case that the properties are joint family properties. He then says that evidence has been led on both sides and the question is really one of inference to be drawn from the evidence on record. It is the positive case of Defendant No. 7ka that the property purchased in her name was acquired by her out of the sale-proceeds of certain properties inherited by her from her sister. The learned Subordinate Judge rightly points out that this story can hardly be believed. Her sister was not examined nor were the purchasers examined in support of the said story. The Plaintiff herself did not depose. In the absence of any satisfactory evidence on this point, the court below was right in disbelieving the story set up by Defendant No. 7ka that the source of the purchase-money was the sale-proceeds of some other property, which Defendant No. 7ka and her sister had sold to certain strangers. If this story goes, the question remains whether the story set up by the Plaintiff should be accepted or not. The Plaintiff''s case is that Defendant No. 7 was in charge of the joint estate of herself and Defendant No. 7. Defendant No. 7 did not dispute that he was in possession of the properties belonging to the Plaintiff. He merely deposed to a separation in mess. The Plaintiff''s husband, Krishna, had died long ago and the estate had been in the management of Defendant No. 7. Defendant No. 7 had the joint funds in his control. If the story of Defendant No. 7ka is negatived the source of the purchase-money must have been met by Defendant No. 7. It is not pretended that Defendant No. 7 paid the purchase-money out of the proceeds of his business in jute. In these circumstances, in my opinion, the Subordinate Judge drew the correct inference. The Subordinate Judge also referred to the evidence of two witnesses, P.Ws. 5 and 6, who stated that the purchase was carried through by Defendant No. 7. The fact that the kab(sic)1(sic) recited that the property was acquired out of the stridham of Defendant No. 7ka is believed by the fact referred to above. As regards the other property which was said to have been purchased by Defendant No. 7kha, his allegation is that Defendant No. 7kha had a business of his own and that he paid the purchase-money. It appears from the evidence of Defendant No. 7kha, Madhusudan, that he has just passed his teens. It also appears that in the Jute Controller''s office this property stands in the name of Defendant No. 7 Purna. Defendant No. 7ka examined an attesting witness, who deposed in favour of Defendant No. 7kha. Having regard to the entry in the Jute Controller''s office, it is difficult to say that the property was really acquired by Defendant No. 7kha with his own funds. For reasons already given, it must be held that (ga) schedule property was also the joint property of the Plaintiff and Defendant No. 7.

The result is that the finding of the Subordinate Judge as regards the lands of schs. ga (1) and ga (2) must be maintained.

We have now to deal with the question whether Kali''s descendants have got any share in the said properties. Dr. Sen Gupta, for the Plaintiff, contended that Kali relinquished his interest in the ancestral lands and, as such, his heirs have no title whatsoever to the lands of sch. ga. In para. 3 of the plaint the Plaintiff stated that, shortly after the death of Swarup, Kali relinquished his share in the ancestral property on receipt of some consideration. The Plaintiff in her deposition does not swear to this fact, nor is there any evidence in support of this allegation. Dr. Sen Gupta contended that the entries in the record-of-rights which negative the interest of Kali in the properties covered thereby raises a presumption in the Plaintiff''s favour that Kali had no interest in the ancestral properties. Kali is an admitted heir of the common ancestor, Swarup, and, unless it is admitted or proved that Kali lost that share by some legal means, Kali''s heirs would be entitled to the estate of their father inherited from their grand-father Swarup. As I have said just now, there is no proof of the alleged relinquishment by Kali. The position, therefore, would be that unless Kali''s interest therein is proved to have been lost by ouster on the part of the co-sharers, Kali''s heirs would be entitled to the interest of their father by right of inheritance. There is no allegation of ouster of Kali''s interest. The evidence rather indicates that Kali''s sons sometimes come and live in the ancestral house. It is also the evidence of the Plaintiff that Kali''s son Nitai prosecutes his studies by residing with Purna. In these circumstances, the presumption raised by the record-of-rights is amply rebutted. Not much importance can be attached to the suits for rent instituted by the landlord ignoring the claims of Kali''s descendants. The landlords merely followed the settlement record-of-rights. The result, therefore, is that the view taken by the court below that Kali''s interest was not lost should be maintained. We may point out that Purna, Defendant No. 7, did not dispute the interest of Kali''s heirs. The contention raised by Dr. Sen Gupta on this point must, therefore, be overruled.

I shall now deal with the contentions of the parties as regards the moveable properties in sch. kha of the plaint. The first item of moveables in sch. ka refers to the furniture, utensils, etc., which belong to the joint family. It was the evidence of Purna that, when the Plaintiff separated in mess, she took away all the moveables which fell to her share. The Subordinate Judge has refused to accept the version of Defendant No. 7 about the separation in mess between Purna and the Plaintiff. The Subordinate Judge, however, overlooked the evidence of the Plaintiff herself that she has been living for three or four years with her son-in-law. The Plaintiff admitted that the son-in-law''s residence is about 4 bigh�s from the ancestral house of the parties. It is extremely unlikely that, as regards the utensils and furniture, the Plaintiff would not take along with her whatever fell to her share. At the time when the Plaintiff went away to live with her youngest son-in-law there was no suggestion of any quarrel between the parties. It is also in evidence that the Plaintiff''s eldest son-in-law came to reside with Purna. In these circumstances, I am of opinion that the view taken by the Subordinate Judge as regards these utensils should be overruled and it must be held that the Plaintiff has no claim as regards the utensils and furniture claimed by her in the plaint.

The next item of moveables in sch. kha is a claim by the Plaintiff to 150 maunds of paddy. After the suit was filed a commissioner was appointed to prepare an inventory. The commissioner found that there were 76 maunds of paddy in the house. The Subordinate Judge was of the opinion that these 76 maunds of paddy must be regarded as the joint property of the Plaintiff, Kali''s heirs and of Defendant No. 7. He, accordingly, gave the Plaintiff a decree to the extent of her one-third share in the stock of paddy. As regards the paddy in stock and also as regards the claim to jute and potatoes, it must be stated at the outset that the claim in the plaint as originally filed related to sch. ka and ga properties. There is no clear statement in the plaint that the paddy, jute and potatoes claimed represented the yield of the lands of sch. ga only. On the other hand, it seems to me that this was the total stock of paddy, jute and potatoes which were grown on the lands in the possession of Purna. It must be assumed, therefore, that the stock of paddy, jute and potatoes which remained under the management of Purna included the produce of both schs. ka and ga lands. As the Plaintiff elected not to proceed with her claim as regards sch. ka lands and limited the suit to sch. ga land it is difficult to state which portion of the paddy, jute and potatoes claimed represented the yield of sch. ga lands only. The sch. ga lands represented a very small part of the properties in the possession of Purna. In the absence of such specification, it is not possible to decree the Plaintiff''s claim in regard either to paddy or jute or potatoes claimed by her. As regards the stock of jute, the Plaintiff, in her plaint, claimed 200 maunds of jute. The inventory commissioner merely stated that the stock of jute, which he found in the premises, was a large quantity. The inventory commissioner went to the place on June 4, 1944. Two days thereafter about 181 maunds of jute was taken away by a firm named Dawn Ghose and Co. on the allegation that this represented the jute belonging to the firm, and which was in the custody of Purna as commission agent. The allegation of the firm is borne out by the account books filed by the firm. The relevant entry is Ext. E-2. The officer of the firm who deposes in support of this entry and the cases set up by them is Bejoy Krishna Ghosh, P.W. 4, Debendra Bhandari stated that the quantity of land which fell to the share of the Plaintiff and Defendant No. 7 would be about 9 or 10 bigh�s and that the yield of jute in one bigh� is 6 to 8 maunds. D.W.1 Purna stated that the land, on which jute was grown, approximated 1/2 bigh�s. It was, therefore, not possible to say that the jute in stock represented the yield of the joint lands of the Plaintiff and Defendant. Dr. Sen Gupta in this Court suggested that the jute in stock might be the stock of the joint business of the Plaintiff and Defendant No. 7. It was asserted that there was a joint business in jute which was carried on by the Plaintiff''s husband and Purna even before the death of the Plaintiff''s husband. Reliance was placed on the statement of the Plaintiff herself that there was a business in jute which was in existence during the lifetime of the Plaintiff''s husband and that this business was carried on by Purna. It is, however, significant that, in the plaint, the Plaintiff did not claim this business as joint. On the other hand, Purna''s evidence is that he was a mere commission agent. In my opinion, the version given by Purna should be accepted and as such the jute in stock as regards 180 maunds and odd, was the jute held by Purna on behalf of the firm Dawn Ghose and Co. and this jute was taken away by the firm. In my opinion, the view taken by the Subordinate Judge on this point must be accepted and the same is affirmed.

We have now to deal with the Plaintiff''s claim as regards the potatoes. In the plaint the Plaintiff claimed 60 maunds of potatoes as joint property. The inventory commissioner reported that there were forty maunds of potatoes in stock. The Subordinate Judge gave the Plaintiff a decree to the extent of 1/3rd of 40 maunds of potatoes. In my opinion, for the reasons already given, the claim to the potatoes must be negatived. It appears from the evidence that Purna was in management not merely of the ancestral lands of Swarup of which Purna and the Plaintiff were in possession under an arrangement but that he also managed some lands which belonged to Defendant No. 13. In my opinion, the view taken by the Subordinate Judge on this point must be overruled and the Plaintiff''s claim in regard to the potatoes in stock must be negatived.

For the same reasons the claim of the Plaintiff to the straw and the items in Ext. 1 must be overruled.

The Subordinate Judge also gave the Plaintiff a decree to the extent of one-third share in two mats. It is in evidence of Purna that there used to be a b�rw�ri festival in the village and these mats belonged to the b�rw�ri of the village. In my opinion, there is no reason to distrust Purna on this head. The claim of the Plaintiff in regard to these mats must also be overruled.

The result, therefore, is that, in disagreement with the court below, we hold that the Plaintiff''s claim in so far as it decrees her one-third share in some of the moveables must be overruled.

There remains the question of accounts. The Subordinate Judge has refused the Plaintiff''s prayer for accounts. Dr. Sen Gupta, appearing for the Appellant, has submitted that the view of the Subordinate Judge is wrong. He contends that it is true that a kart� of a joint family is not required to render accounts, but that the court must enquire into the accounts to find out the existing condition of the joint properties. In my opinion, there is no foundation for this contention in the facts of the present case. It appears from the evidence that Purna was dealing fairly with the members of the family consisting of himself and his brothers Krishna and Kali. He had given two daughters of the Plaintiff in marriage at considerable expense. One of the sons of Kali, Nitai is living under his roof and prosecuting his studies. Defendant No. 13 is also being maintained by him. The Plaintiff, in her evidence, has not suggested that Purna was guilty of any misappropriation. There is no evidence on record that apart from the items Nos. 1 and 2 Purna acquired any other moveable property. Reliance was placed on the evidence of Purna that the Plaintiff''s share in the joint properties was consumed by the family after the Plaintiff removed to her son-in-law''s place. This is not a ground for accounting. The kart� cannot be made to account for the actual use of the produce of the joint lands. In the aforesaid circumstances, I am of opinion that the view taken by the court below is correct and must be affirmed.

The result, therefore, is that F.A. 37 of 1947 is allowed in part and F.A. 108 of 1947 is dismissed. The decree of the court below is varied. The preliminary decree for partition of the moveables in ach. kha, namely, 76 maunds of paddy, 40 maunds of potatoes, 7 k�hans of straw and brass and bell-metal utensils in items Nos. 5 and 6 of Ext. 1 and 2 pieces of mats and the miscellaneous moveables in item No. 7 of Ext. 1 is set aside. The direction on Defendant No. 7 to produce the above moveables before the commissioner is also set aside. The consequential directions in this behalf are also set aside. Subject to the variation as aforesaid, the decree of the court below is affirmed.

As regards the costs of these appeals, the parties will bear their own costs in F.A. 37 of 1947. Defendant No. 7 in F.A. 108 of 1947 will, however, get his costs in that appeal from the Appellant,-hearing fee being assessed at five gold mohurs.

Lahiri, J.

I agree.