ANIL KUMAR MITRA AND ORS. versus GANENDRA NATH MITRA AND ORS.

Citation: [1996] SUPP. 9 S.C.R. 338 · Decided: 28-11-1996 · Supreme Court of India · Bench: K. RAMASWAMY, G.T. NANAVATI · Disposal: Dismissed

Judgment (excerpt)

A 
B 
ANIL KUMAR MITRA AND ORS. 
v. 
GANENDRA NATH MITRA AND ORS. 
NOVEMBER 28, 1996 
[K. RAMASWAMY AND G.T. NANA VAT!, 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. 
G 
Amarendra Nath Dawn and Mrs. Dipti Choudhary for the Respon-
dents. 
The following Order of the Court was delivered : 
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 
• 
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 
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. 
F 
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 
• 
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 con

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