Amal Kanti Bhattacharya & Anr vs Dr. Nirmal Kanti Bhattacharya & ...
2022 Latest Caselaw 2014 Cal

18.04.2022
Sl. 15            (Via Video Conference)
Ct.No. 03
Amalranjan
               IN THE HIGH COURT AT CALCUTTA
                CIVIL APPELLATE JURISDICTION
                       APPELLATE SIDE

                           FA/233/2014

               Amal Kanti Bhattacharya & Anr.
                              Vs.
             Dr. Nirmal Kanti Bhattacharya & Anr.

                          With
             CAN/1/2014 (Old CAN/8034/2014)
                          With
                      CAN/5/2022


               Mrs. Shohini Chakraborty
               Mr. Arijit Sarkar
                                                ...for the appellants

               Mr. Gopal Pahari
                                           ...for the sole respondent

This is an appeal from a preliminary decree

dated 28th April, 2014 passed by the learned

court below in a Partition and Administration

suit.

It is pending in this court for about eight

years. The issues involved in this appeal are

confined to short areas.

The immovable property involved is a three

storied building at premises no. 6, Baman Para

Lane, Police Station Karaya, Kolkata - 7000019.

This is the only immovable property involved.

The movable properties which are the subject

matter of this appeal is a steel box with gold

ornaments and the fixed deposits in UCO Bank,

Ballygunge Branch, which were made by the

mother of the parties with each party as a joint

holder.

The dispute with regard to the immovable

property is this. In the title deed as well as in

the schedule to the plaint, its area is described

as 3 cottahs. But in the plaint it is described as

3 cotthahs 9 chittaks.

According to Mrs. Chakraborty, learned

advocate appearing for the appellants, it is only

1 cottah 7 chittaks. She submits that unless the

area of the immovable property is determined by

the court, there would be no useful purpose

served by a Commissioner of Partition suggesting

partition of the premises, in his report.

According to her, whatever may have been the

actual area of the premises at an earlier point of

time any area in excess of 1 cottah 7 chittaks

was divested from the owner before the death of

the mother of the parties. According to learned

counsel, the preliminary decree without such

determination was erroneous.

With regard to the movables her submission

was that the fixed deposits had been encashed

before the death of the mother of the parties and

that there were no deposits to be divided

amongst them.

We have also heard learned counsel for the

respondents. He wants the Commissioner to

proceed with the work of proposing a plan for

partition as early as possible.

The learned judge of the court below,

passing the preliminary decree without

determining the area of the suit property and

without answering the question whether the

fixed deposits were existing or not had fallen into

error. Without this determination, the Partition

and Administration suit can never be decreed.

The Commissioner of partition would have

been lacking in powers to make this

determination. Only the court has the power to

do so.

We are of the view that this appeal should

not be kept pending in this court at all.

In our opinion, the learned judge of the

court below should determine the area of the

schedule property and also whether the fixed

deposits in UCO Bank made by the mother of the

parties had been encashed prior to her death. A

preliminary decree may be passed at the earliest

possible not later than six months from date. To

determine these issues, the learned judge should

permit fresh discovery, disclosure of documents

and inspection thereof.

At the time of pronouncement of the

preliminary decree, a Commissioner may be

appointed to undertake the work of proposing a

plan for partition. This work must also involve

opening the steel box containing the gold

ornaments and making an inventory thereof. A

report is to be filed in the learned court below

within a further period of three months.

Thereafter, the court should pronounce a

final judgment and decree and put an end to a

long-standing lis pending between the parties.

The impugned preliminary decree dated 28th

April, 2014 is set aside.

The appeal is, thus, disposed of.

The connected applications are also

disposed of.

( Aniruddha Roy,J. ) ( I. P. Mukerji,J. )