Smt. Sandhya Basu Mallick & Anr vs Mr. Pramatha Nath Sen & Anr
2023 Latest Caselaw 2979 Cal/2

OD- 18 & 19

                                 ORDER SHEET
                       IN THE HIGH COURT AT CALCUTTA
                        Ordinary Original Civil Jurisdiction
                                ORIGINAL SIDE

                    IA NO. GA/5/2018 (Old No: GA/3055/2018)
                    IA NO. GA/7/2019 (Old No: GA/2035/2019)

                                   In CS/540/1988

                      SMT. SANDHYA BASU MALLICK & ANR
                                    Vs
                        MR. PRAMATHA NATH SEN & ANR


BEFORE:
The Hon'ble JUSTICE SUGATO MAJUMDAR

Date: 16th October, 2023

Appearance:

Mr. Anirban Ray, Adv.

Mr. Sumitava Chakraborty, Adv.

...for Plaintiff no. 1.

Mr. D.C.Thakur, Adv.

Mr. Asok Kumar, Adv.

Mr. Alok Mukhopadhyay, Adv.

...for Defendant.

The Court: G.A. 7 of 2019 (Old No. 2035 of 2019) was filed by the Plaintiff no.

1 praying for mandatory injunction directing the Defendant no. 1 to produce the

jewelleries mentioned in Annexure 'D' to the plaint except items no. 2 & 3, to the

Commissioner of Partition; direction to the Commissioner of Partition to distribute

the jewelleries, so produced and handed over by the Defendant no. 1 in terms of the

preliminary decree dated 15.12.2016; in case of failure to produce the jewelleries, the property being a two storied building situated at 10, Lake Range, Kolkata - 700026

be attached alternatively the Defendant no. 1 be directed to furnish a security of Rs.

60,00,000/- to this Court; appointment of receiver for taking actual possession of

the aforesaid property ; in case of failure to hand over the jewelleries by the

Defendant no. 1, the aforesaid property be sold for satisfaction of the claim of the

Plaintiff no. 1 and other co-owners along with other prayers.

The facts of the case which is undisputed is that the instant suit was filed

praying for partition by metes and bounds various joint properties mentioned in

Annexure 'A' to 'E' of the plaint. The Defendant no. 1 contested the suit by filing

written statement. Both the contesting parties adduced evidences. Judgment was

delivered on 15th December, 2016 passing preliminary decree. It was in the

preliminary decree that the Plaintiffs and the Defendants shall have one fourth

share each in the properties in Annexure 'A' and Annexure 'D'. Parties to the suit

were allowed two months time for amicable partition failing which the parties were

granted liberty to put the decree in execution for final decree by appointing a

partition commissioner to effect the partition by metes and bounds.

It is contended in the instant application that amicable settlement between

the parties failed. Consequently, the Plaintiff filed an application G.A. 3055 of 2018

renumbered as I.A.G.A. 5 of 2018 praying for passing of final decree in terms of the

preliminary decree dated 15.12.2016, appointment of Partition Commissioner along

with other reliefs, with a direction to the Partition Commissioner, so appointed to

take immediate possession of the movable properties described in Annexure 'D' of

the plaint along with other reliefs. It is further contended that in terms of an order

dated 26.10.2018 the Defendant no. 1 was restrained from dealing with the

properties mentioned in Annexure 'D'. Subsequently by an order dated 26.11.2018, Partition Commissioner was appointed and it was directed that the Partition

Commissioner shall take possession of the movable properties mentioned in

Annexure 'D' of the plaint. Subsequently when the matter came up for hearing the

Defendant no. 1 submitted that jewelleries as mentioned in Annexure 'D' had

already been handed over to the other co-sharers. On direction of the Bench, the

Defendant no. 1 filed affidavit substantiating this contention. It is contended in the

application that the Defendant no. 1 is trying to sell and dispose of the jewelleries.

Valuation of the jewelleries was made. In this context the present application is

filed.

The Defendant no. 1 opposed the application by filing affidavit-in-opposition.

The sum and substance of the case of the Defendant no. 1 is that the gold ornaments

mentioned in Annexure 'D' were valued on 17.05.1986 and 21.06.1986. The

valuation was calculated at Rs.1,76,644/-. Thereafter on May 31, 1987 all those

ornaments were distributed among the four contending parties, details of which are

given therein.

It is further submitted that the distribution of the said jewelleries was

recorded in an affidavit in the month of August 1998 and submitted before this

Court in CS 540 of 1998 under the category of evidence through affidavit for the

purpose of application of itself. This affidavit was affirmed by one A. K. Pal,

Advocate and Tax Consultant in whose chamber in the month of June 1998 all the

parties attended for amicable settlement. It is contended that legal claims for

attachment of personal property at 10, Lake Range, Kolkata - 700026 does not

arise.

A supplementary affidavit was also filed by the Defendant no. 1 reiterating

the same stand mentioning various evidences adduced in the Court. It is reiterated

that affidavit of Mr. A. K. Pal as mentioned in the original affidavit-in-opposition,

according to the Defendant, well-establish that articles in question had been

distributed prior to the institution of the suit. It is further contended that this Court

cannot legally direct the Defendant no. 1 to deliver again the possession of those

articles to the respective share-holders. The decree which had been passed on 15th

December, 2016 over the distributed jewelleries and ornaments is in a word void

and nullity and legally fails to be in an executable one. Although no appeal is

preferred, under the law, according to the Defendant there is no rebuttable question

which has arisen. In fact, the jurisdiction of the Court to pronounce the Judgment

dated 15th December, 2016 has also been challenged.

A separate affidavit-in-opposition is filed on behalf of the Plaintiff no. 2 in

tune with the application filed by the Plaintiff no. 1. According to the Defendant no.

1 never contended before the Appellate Court the jewelleries and ornaments are

non-existence. The ostensible claim of non-existence of jewelleries is an attempt to

circumvent the order passed by this Court, according to the Plaintiff no. 2.

Preliminary decree in this case was passed on 15th December, 2016.

Preliminary decree covered the jewelleries mentioned in Annexure 'D' of the plaint.

Direction was given for amicable partition, in default, appointment of a Partition

Commissioner. This decree was not appealed from by the Defendant no. 1. In terms

of Order dated 18th July, 2019 a Co-ordinate Bench directed the Defendant no. 1 to

substantiate his contention in the form of an affidavit that ornaments were

distributed prior to the institution of the suit. Thereafter, limited order of

injunction was given by a Co-ordinate Bench to the Defendant no. 1 restraining him from dealing with properties mentioned in Annexure 'D' of the plaint in any manner

howsoever including selling or disposing of the same to any third party or

otherwise. Subsequently, a Co-ordinate Bench of this Court in terms of Order dated

26th November, 2018 appointed Partition Commissioner and directed the Partition

Commissioner to take possession of movable properties mentioned in Annexure 'D'

after making an inventory thereof in presence of the parties and to keep the said

movable properties in a place to be provided by this Court. Appeal was preferred

against the said order in the Division Bench wherein, in terms of Order dated

14.02.2019, the order passed by the Single Bench on 26th November, 2018 directing

the Partition Commissioner to take delivery and possession of the jewelleries

mentioned in Annexure 'D' was upheld with modification that gold coins covered by

items no. 2 & 3 in Annexure 'D' should be excepted. No further appeal was

preferred.

In view of the decree dated 15.10.2016 as well as consecutive orders, it is

settled that the Defendant no. 1 is to produce the ornaments before the Partition

Commissioner as detailed in Annexure 'D' of the plaint except the gold coins. This

was further confirmed by the Division Bench as aforesaid. Plea that the decree is

null and void is of no avail as this Bench cannot sit as an appellate court against the

preliminary decree. The contention of the Defendant no. 1 is misconceived. This

apart the Co-ordinate Bench also observed in terms of Order dated 23rd September,

2019 that Plaintiff is under duty to produce the ornaments and pass consequently

an order of injunction.

The Defendant no. 1 is still now harping on the same stand that ornaments

were had been distributed. A further direction took produce the ornaments as

detailed in Annexure 'D' of the plaint except the gold coins shall be a futile exercise. Therefore, it is appropriate that an order of attachment should be passed by this

Court in respect of two storied building situated at 10, Lake Range, Kolkata -

700026, P.S. - Tollygunge.

Accordingly, let the property as stated above be attached with effect from the

date of passing of this order for a sum of Rs. 60,00,000/-. The Defendant no. 1

shall deposit the amount of Rs. 60,00,000/- within two months before the Partition

Commissioner who shall deposit the same in a special bank account of any

nationalized bank. On deposit of the amount the order of attachment shall stand

vacated. In case of failure to deposit the amount within two months the Partition

Commissioner shall sell out the property with permission of this Court to realize the

money. The Partition Commissioner at liberty to approach this Court for further

direction, if any needed.

Let the matter appear in the monthly list of January 2024 for further orders

and report of the Partition Commissioner on directions passed above.

(SUGATO MAJUMDAR, J.)