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Damodar Misra and anr. Vs. Banamali Misra and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 10 of 1963
Judge
Reported inAIR1967Ori61; 33(1967)CLT142
ActsHindu Law
AppellantDamodar Misra and anr.
RespondentBanamali Misra and anr.
Appellant AdvocateB.K. Behura, Adv.
Respondent AdvocateR.K. Mohapatra, Adv.
DispositionAppeal dismissed
Cases ReferredNarayanaswami Iyer v. Ramkrishna Iyer
Excerpt:
.....family properties as and when they used to come and stay there; 1 used to manage and enjoy the family properties as and when they used to come and stay in the joint family house......the defence of defendant no. t appellant herein is that the plaintiff was in the management of the joint family properties and therefore he was liable to render accounts; it was also contended that defendant no 2 malati dibya is not entitled to any share as she was not the widow of their father as alleged. the material issues raised before the trial court were issues nos. 3 and 6 which are these:issue no. 3: is the defendant no. 2 the married wife of late chintamani and the mother of the plaintiff and defendant no. 1? issue no. 6: is the plaintiff liable to render accounts of the income of joint family properties and of all sums sent by defendant no. 1 to plaintiff during the last 17 years us claimed? 2. the trial court held that defendant no. 2 malati dibya was the married wife of late.....
Judgment:

Barman, Ag. C.J.

1. This appeal filed by defendant No. 1, Damodar Misra, arises out of a suit for partition filed by his brother, the plaintiff Banamali Misra against defendant No. 1 and the mother defendant No 2 Malati Dibya in respect of the suit properties mentioned, in plaint schedule 'B', 'D' and 'F' The defence of defendant No. t appellant herein is that the plaintiff was in the management of the joint family properties and therefore he was liable to render accounts; it was also contended that defendant No 2 Malati Dibya is not entitled to any share as she was not the widow of their father as alleged. The material issues raised before the trial Court were Issues Nos. 3 and 6 which are these:

Issue No. 3: Is the defendant No. 2 the married wife of late Chintamani and the mother of the plaintiff and defendant No. 1?

Issue No. 6: Is the plaintiff liable to render accounts of the income of joint family properties and of all sums sent by defendant No. 1 to plaintiff during the last 17 years us claimed?

2. The trial court held that defendant No. 2 Malati Dibya was the married wife of late Chintamani Misra, and mother of the plaintiff and defendant No. 1; that the plaintiff is not liable to render accounts as claimed by defendant No, 1. Accordingly, both the said issues were decided against defendant No. 1, appellant herein.

3. In this appeal, the only point urged on behalf of the defendant-appellant was whether the plaintiff was liable to render accounts. The defendant-appellant's case against the plaintiff as pleaded in the written statement was this. The plaintiff used to keep all the usufructs and income of the joint family properties; he has not rendered any account of the same, nor given any share to defendant No. 1; the plaintiff had misappropriated the income of the family properties to his own use and also to the use of his wife; the plaintiff is liable to render accounts before partition is effected; in order to defraud this defendant from getting his legitimate share of the joint family properties and the past income, the plaintiff has cleverly filed this suit.

4. In reply the plaintiff's case was this. The plaintiff in his evidence as P. W. 1 said that it was defendant No. 1 who was the Karta of the joint family; defendant No. 1 was residing in the family house since the last seven years; prior thereto when he was serving outside, he was regularly coming to the joint family house and enjoying the joint family properties. The plaintiff further said the children of defendant No. 1 mostly used to reside in the joint family house and sometimes with defendant No. 1. The plaintiff's case in substance is that the two brothers used to remain and enjoy the joint family properties as and when they used to come and stay there; evidently neither the plaintiff nor the defendant No. 1 was in sole management of the joint family properties.

5. The defendant appellant called four witnesses, including himself as D. W. 4. His evidence is that he was a railway employee since retired; during his absence on service the plaintiff was looking after the joint family properties; the defendant used to send money to the plaintiff from time to time; in 1961 when he retired from service he demanded accounts from the plaintiff and Rs. 300 in cash, but the latter evaded his request; the plaintiff has misappropriated all the funds of the joint family.

6. In support of the defendant's case D. W. 2 said that during the absence of the defendants, the plaintiff was managing the joint family properties. As regards the competency of this witness he belonged to a different village; from the tenor of his evidence he does not appear to have known much about this family; he could not say where defendant No. 1 served, nor could he say if defendant No. 1 gave any direction to the plaintiff; he said that some of the persons from whom he heard about the family are dead.

7. The other witness D. W. 3 for defendant No. 1 also said that the plaintiff looked after the cultivation of the lands and the income of the joint family properties. This witness also belonged to another village. In cross-examination he admitted that he could not say about the affairs of the family of Chintamani . Misra. Evidently this witness also did not know much about this family and was not competent to say as to how the family properties of the plaintiff and defendant were being managed.

8. It is the settled position in law as laid down by the Supreme Court in Narayanaswami Iyer v. Ramkrishna Iyer AIR 1966 SC 289 that in the absence of fraud or other improper conduct the only account the Karta of a joint family is liable for is as to the existing state of the property divisible. It was rightly submitted on behalf of the defendant appellant that this principle does not mean that the parties are bound to accept the statement of the plaintiff as to what the property consisted of; the defendant-appellant further submitted that an enquiry should be directed by the court in a manner usually adopted to discover what the property consisted of at the date of the partition.

9. Indeed there is no dispute about the correctness of the said proposition of law on which the defendant appellant relied. The point is in what manner this principle has been applied? It all depends on the facts and circumstances of each case. What are the facts In the present case? Prima facie there is no evidence that the plaintiff had in his hand at the date of the suit any accumulation worth the name; in such circumstances, there can be no justification for calling upon the plaintiff to account for his past dealings with the joint family properties and income even if the plaintiff had dealt with the same.

10. In the present case, the evidence is that both the plaintiff and defendant No. 1 used to manage and enjoy the family properties as and when they used to come and stay in the joint family house. In such circumstances, the plaintiff cannot be asked to render accounts as claimed.

11. In this view of the case, the decision of the learned trial court is upheld. This appeal is dismissed with costs against defendant No. 1 appellant herein.

Das, J.

12. I agree.


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