1 IN THE HIGH COURT AT CALCUTTA ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL SIDE Present: The Hon’ble Justice Shivakant Prasad CS No.212 of 2010 Mrs. Malabika Bhattacharyya Versus Shri Amitava Mukherjee For the plaintiff For the defendant : Mr. Sanatan Ghosh, Advocate : Mr. B.B. Saha, Advocate Mr. Sudip Deb, Advocate Mr. Bishajib Ghosh, Advocate Ms. Kasturi Tarafdar, Advocate Heard on :
29. 08.2016, 05.9.2016, 07.9.2016, 08.9.2016, 09.9.2016, 15.9.2016 & 03.11.2016 C.A.V. on :
03. 11.2016 Judgment on :
07. 11.2016 SHIVAKANT PRASAD, J.
Plaint case in brief is that mother of the plaintiff and defendant Mrs. Ranu Mukherjee, W/o. Late Sambhu Prasad Mukherjee started business at Calcutta with her own and husband’s money in the name and style as Super Scientific Instruments later changed to Super Engineering Industries, a proprietary, having Head Office at 124 B, Lenin Sarani Calcutta-700 013 and its factory at 6D, Mathur Babu Lane, Kolkata-700 015 (also known as B/6D/H/2, Rani Rashmoni Garden Lane), Kolkata-700 015. The mother died intestate on 10.6.2008 leaving behind her only daughter Mrs. Malabika Bhattacharyya the plaintiff herein and only son Shri Amitava Mukherjee the defendant herein and these two are successors legal representatives to the estate both movable and immovable of the said Ranu Mukherjee as joint owners. The plaintiff and defendant herein are entitled to all joint family properties both movable and immovable including the joint family business of Ranu Mukherjee with half share respectively owned by each. After the death of said Ranu Mukherjee, the plaintiff continued through the defendant- Successor- Shri Amitava Mukherjee herein, to carry on and still are carrying on the said family business. It is submitted that the said Super Engineering Industries has its factory in the land of thika tenancy having area of about 15387 sq. ft. at 6D, Mathur Babu Lane, Kolkata-700 015 upon which the structure was made by said Ranu Mukherjee. The said Ranu Mukherjee inducted some tenants in her dwelling house at 2, Durga Charan Dr. Lane, Kolkata-700 014, and received rents from tenants, and the present defendant after the death of Ranu Mukherjee continued to collect the said rents from the tenants. The immovable properties being of four storied building standing on land of approximate five cottahs thirteen chittaks and twenty two sq. ft. being family dwelling house standing on the premises No.2, Durga Charan Dr. Lane, P.S.Taltala, Kolkata-700 014 and the Head Office of the factory at 124B Lenin Sarani, Kolkata-700 013 are joint property. After the death of Ranu Mukherjee the said son Shri Amitava Mukherjee has been looking after, managing and running the said joint family business with the trade licence of Kolkata Municipal Corporation. The plaintiff did not get any of her share out of sale proceeds and income of the said joint family business as well as rents, profits of the said immovable properties at any time till this date from the defendant. The defendant has been enjoying all the profits of joint family business, rent received from tenants and all movables kept by deceased at the dwelling house at 2, Durga Charan Dr. Lane, Kolkata-700 014 at the time of death of mother Ranu Mukherjee. The plaintiff time and again demanded and claimed payment of share value of the joint family business and physical partition of the dwelling house and the rooms at Lenin Sarani, but the defendant refused and neglected to do the same. The plaintiff came to know on inspection of the original document as produced on 18th April, 2011 that the defendant and his mother Ranu Mukherjee, entered into a deed of partnership, on 7th June, 2008, just three days before her mother’s death on 10th June, 2008 at the age of 73 years. The said deed of partnership, dated 7th June, 2008 as claimed was authenticated by one Qamrul Hassan on 9th June, 2008, the Notary, Government of India, Regn. No.4312/07, Sealdah Court just one day before the death of Ranu Mukherjee with Notarial Certificate dated 09.6.2008 on presentation and admission of documents by Ranu Mukherjee as stated in the Notarial Certificate issued by the said Notary. The said deed of partnership dated 7th June is fabricated, manufactured, false and fake, and is made with ulterior motive to deprive the plaintiff from the joint family business. The plaintiff further submitted that she did not give any consent and/or did not put any signature as a witness in the impugned deed of partnership dated 7th June, 2008. The plaintiff’s signature as appearing and occurring therein in the impugned deed of partnership, dated 7th June, 2008 is forged and false. The defendant has contested the suit by filing written statement denying all material particulars made in the plaint and contended inter alia, the business under the name and style of M/s. Super Engineering Industries until June 6, 2008 was proprietorship concern of late Ranu Mukherjee. With effect from June 7, 2008 the said Ranu Mukherjee inducted the defendant as a partner into the said business on 50:50 profit sharing ratios by virtue of a deed of partnership dated June 7, 2008 which provides, inter alia that during the continuance of the said business, if any partner, dies, then the share of the said demise partner shall be devolved upon the rest partner accordingly as the partners are the mother and son in relation and in that case the existing partner shall have the sole authority to induct new person as partner into the said business for conducting the said business jointly. After the death of the said Ranu Mukherjee, the said partnership dissolved by the operation of law and her share in the said partnership business devolved upon the defendant in terms of Clause 11 of the said deed of partnership dated June 7, 2008. The defendant has since been carrying on said business under the name and style Super Engineering Industries as sole proprietor thereof the plaintiff has no right and claim to the said business. The Head Office of the said business is situated at 124B, Lenin Sarani,Ground Floor, Left Side, Second Room, Kolkata-700 013 and its factory is situated at 6D, Mathur Babu Lane, Kolkata-700 015. By virtue of a registered indenture of conveyance dated September 11, 1986, the said Ranu Mukherjee as sole proprietor of Super Engineering Industries purchased an undivided 72/625th share in premises No.124B, Lenin Sarani, Kolkata-700 013 along with the four storied building thereon. The 50% share of Late Ranu Mukherjee in the partnership business of Super Engineering Industries having devolved upon the defendant as the surviving partner, the defendant is entitled to the aforesaid undivided 72/625th share in the immovable property at 124B, Lenin Sarani, Kolkata-700 013, in its entirety to the exclusion of the plaintiff. Under a registered deed of lease dated October 4, 1978, the said Ranu Mukherjee since deceased, had acquired a lease in respect of certain vacant lands along with factory shed and go-down standing thereon situate at 6/D, Mathur Babu Lane, Kolkata-700 015, from the Thika Tenant. Such lease was acquired for the purpose of carrying on her manufacturing business under the name and style of Super Engineering Industries. It is further contended that four storeyed dwelling house at 2, Durga Charan Doctor Lane, Kolkata- 700 014 admittedly belonged to Late Ranu Mukherjee the mother of the plaintiff and the defendant and plaintiff and the defendant are entitled to ½ undivided share each in the said house property and the surplus rental income therefrom after defraying the outgoing expenses and liabilities incurred on account of the said house property, such as, municipal rates and taxes, maintenance, etc. It is further contended that by registered deed of indenture of conveyance dated September 11, 1986 Sambhu Prosad Mukherjee, since deceased, father of the parties had purchased an undivided of 1/25th share in premises No.124B, Lenin Sarani, Kolkata-700 013 along with four storeyed building thereon and his undivided share if dissolved equally upon his widow, daughter plaintiff and son defendant each having 1/75th share therein and after the demise of Ranu Mukherjee the share which she had inherited from her husband devolved equally upon the parties. Thus, the plaintiff and the defendant have each inherited 3/50th share in the premises No.124B, Lenin Sarani, Kolkata-700 013. It is a specifically contended by the defendant that after the death of mother Ranu Mukherjee pursuant to mutual agreement the parties opened a joint savings account at United Bank of India, Entally Branch being A/C. No.0088010242394 with operating instruction either or survivor and requested the tenant of the house property at 2, Durga Charan Doctor Lane, Kolkata- 700 014 to issue the Cheque on account of monthly rent occupier’s share of taxes, surcharge, etc. in the joint names of the plaintiff and the defendant with effect from June 2008. It is also contended that plaintiff is not entitled to claim partition of the business under the name and style Super Engineering Industries or anything its asset of properties as the defendant is the sole proprietor of the said business situated at premises No.6/D, Mathur Babu Lane, Kolkata-700 015. Accordingly, the defendant has prayed for dismissal of the suit with costs so far as the claim of the plaintiff in respect of Super Engineering Industries. On the above pleadings following issues have been framed:
1. Is the suit maintainable in the present form and under the law?.
2. Is the plaintiff entitled to claim partition in respect of the business carried on under the name and style of Super Engineering Industries, having Head Office at 124B, Lenin Sarani, Calcutta-700 013?.
3. Is the plaintiff entitled to a declaration that the Deed of Partnership dated 7th June, 2008 is void and accordingly the same be adjudged void and be delivered up and cancelled?.
4. Is the claim of the plaintiff so far as relates to the income and asset of Super Engineering Industries, is maintainable or not?.
5. Has the plaintiff committed any fraud by suppressing her signature in the Deed of Partnership dated 7th June, 2008 as also the affidavit affirmed by her before the learned Judicial Magistrate, First Class, Sealdah, giving her consent to the fact that the defendant is the owner of the business, namely Super Engineering Industries?.
6. What other reliefs, if any, is the plaintiff entitled to?.
7. Is the plaintiff entitled to claim any share in respect of the undivided 1/25th share in premises No.124B, Lenin Sarani, Kolkata-700 013, purchased by her late father, namely Sambhu Prosad Mukherjee?. Issue No.1: It is admitted that the plaintiff and the defendant have equal share in four storyed house at 2, Durga Charan Doctor Lane, Kolkata- 700 014 which stood is the name of their mother Ranu Mukherjee, since deceased and thus, the plaintiff is entitled to ½ undivided share in the said house property. Pleading reflect that tenants are occupying ground floor, first floor and second floor and remitting rents in the joint savings account No.0088010242394 opened with United Bank of India, Entally Branch, Kolkata. The defendant has also admitted that the plaintiff is entitled to rent or income in respect of house at 2, Durga Charan Doctor Lane, Kolkata- 700 014 and at 124B, Lenin Sarani, Kolkata-700 013 only to the extent of her respective shares as averred in paragraph 7 of the written statement. A dispute as reflected from the averment made in the plaint at paragraph 9 is that save and except the immovable property situated at 2, Durga Charan Doctor Lane, Kolkata- 700 014 and one situated at 124B, Lenin Sarani, Kolkata700 013 of which the parties are co-owners along with twelve others, albeit in equal shares, does not have any right, title or interest in any remaining properties shown in the Schedule –‘B’. It would not be out of the context to mention that vide order dated 10th June, 2013 passed in G.A. No.586/13 arising out of C.S. No.212 of 2010 this Hon’ble Court was pleased to grant a preliminary decree in respect of the suit house at No.2, Durga Charan Doctor Lane, Kolkata700 014 in ½ share each in respect of the parties to the suit. Learned Commissioner of partition was directed to effect partition of said four storyed building house and to hand over the possession to the parties in accordance with their respective shares with further direction to collect the rent and income from the said suit house and to divide the same between the parties. It further reveals from order dated 2nd December, 2013 passed in G.A. No.566/13 that the order dated 10th June, 2013 was modified by appointing Mr. Udayan Chakraborty, Advocate as the Commissioner for partition to act as joint receiver to make inventory of the tenants and rent etc. The order dated 13th August, 2014 reflects that an Appeal being No.APOT41512014 arising out of this suit was preferred and Mr. Sujit Chatterjee, learned Advocate Commissioner was discharged from functioning as Commissioner for partition and Mr. Udayan Chakraborty the other Senior Commissioner was to act as the sole Commissioner in place and instead as the Joint Commissioner. Thus, this Court finds that suit has been decreed in part by grant of preliminary decree in respect of the suit house at premises No.2, Durga Charan Doctor Lane, Kolkata- 700 014. Therefore, I hold that the suit is maintainable in its present form and prayer bearing in mind the nature of the suit being a partition suit. Thus, the issue is decided in the affirmative. Issue Nos. 2, 3, 4, 5, 6 and 7: All the above issues are taken up together for the sake of convenience in discussion and for brevity. The plaintiff has prayed for partition of the Head Office of the joint family business of Super Engineering Industries with ownership of rooms at premises No.124B, Lenin Sarani, Kolkata-700 013 and also of the properties situated at 6/D, Mathur Babu Lane, Kolkata-700 015. It is submitted that the mother of the parties was aged about 73 years, who had been suffering from serious Kidney problems and multi-organs troubles, and was almost in ‘COMA’ stage one week before her death on 10th June, 2008. The deed of partnership Exbt.- ‘F’ was entered by and between the defendant and their mother Ranu Mukherjee on 07.6.2008 and the same was authenticated by one Qamrul Hassan on 9th June, 2008, the Notary, Government of India, Regn. No.4312/07, Sealdah Court just one day before her death. According to plaintiff, the said deed of partnership dated 7th June, Exbt.- ‘F’ is fabricated, manufactured, false and fake, document made with ulterior motive to deprive the plaintiff from the joint family business and further contended that the plaintiff did not give any consent or put any signature as a witness to the said deed of partnership and that the signature as appearing is forged and false and the defendant cannot claim the said family business as a partner in the joint family business. The contention of the plaintiff that her signature was forged and false cannot be accepted without the same being tested by hand writing expert. No step has been taken by the plaintiff for examination of her signature appearing in the deed of partition Exbt.-‘F’ alleged by her to be forged inasmuch as the plaintiff has admitted her signature on the affidavit filed before the Court of learned Judicial Magistrate, 1st Class, Sealdah duly affirmed by her being her signature Exbt.-1/1 on affidavit Exbt. 1 and signature Exbt.- 2/1 on the affidavit Exbt.-2 which were affirmed on 21.6.2008. It reflects from the contention made in paragraph 3 of Exbt.-1 that she gave consent to the competent authority of KMC to record the name of her brother Amitava Mukherjee, defendant herein as the owner of the Super Engineering Industries having office at 124B, Lenin Sarani, Kolkata-700 013 and its factory at B/6D/H/2 Rani Rashmoni Garden Lane, Kolkata-700 015 and has no objection for issuance of a trade licence in the name of the defendant. It is reflected from the affidavit Exbt.-2 that she also requested the authority concerned to transfer the account in the name of her brother as she has no objection and no claim or demand whatsoever from the business in Super Engineering Industries. These two affidavits in unequivocal term reflect that mother Ranu Mukherjee carried on the business in the name of Super Engineering Industries having its office at 124B, Lenin Sarani, Kolkata700 013 and its factory at B/6D/H/2 Rani Rashmoni Garden Lane, Kolkata-700 015 as sole proprietor having trade licence issued from the Licence Department of Kolkata Municipal Corporation. Having compared the signatures of the plaintiff from her admitted signatures appearing in the said Exbts. 1 and 2 with that of her signature appearing as witness No.1 on the deed of partition Exbt.-‘F’, this Court concludes that the signature which the plaintiff put on the deed of partition Exbt.-‘F’ is that of the plaintiff Mrs. Malabika Bhattacharyya. Mr. Dilip Kumar Bhattacharyya has testified the fact that the said deed of partnership Exbt.-‘F’ is an agreement between Ranu Mukherjee and Amitava Mukherjee in the form of partnership deed and he has signed as a witness at page 6 of the document vide Exbt.-5. He has also testified the fact that Mrs. Malabika Bhattacharyya and Amitava Mukherjee have put their signatures thereon in his presence and Malabika Bhattacharyya put her signature on the deed on 9th June, 2008 and were signed in presence of Advocate and the Notary and also in presence of Ranu Mukherjee. This witness is maternal uncle of the plaintiff and defendant. In this context, learned Advocate for the plaintiff has submitted that there is no existence of partnership firm and placed reliance on the observation made in case of Commissioner of Income Tax, Madhya Pradesh, Nagpur Vs. Seth Govindram Sugar Mills Ltd. reported in 1966 AIR, 24 in which case a joint Hindu family consisting of two branches owned a sugar mill. After partition, the two kartas entered into a partnership in 1943, to carry on the business of the sugar mill and two partners represented the respective joint families, wherein it is provided that the death of any of the parties shall not dissolve the partnership and either the legal heir or the nominee of the deceased partner should take his place. One of the kartas died in 1945 leaving as members of his branch of the family, three widows and two minor sons. The other partner continued the business of the sugar mill in the firm name and the respondent-firm applied for registration on the basis of the partnership agreement of 1943, during the assessment year 1950-51. The question was whether after the death of Nandlal his heirs, i.e. members of his branch of the family, automatically became partners of the said firm. The finding of the High Court holding that the partnership business was carried on by the representatives of the two families after the death of Nandlal, was set aside. It has been observed that in case of a partnership consisting of only two partners, no partnership remains on the death of one of them and, therefore, it is a contradiction in terms to say that there can be a contract between two partners to the effect that on the death of one of them the partnership will not be dissolved but will continue. Thus, learned counsel for the plaintiff submitted that the question of interregnums does not arise. The heirs become partners not because of a contract between the heirs on the one hand and the other partners on the other but because of the contract between the original partners of the firm. It is equally settled principle of law that a joint Hindu family as such cannot be a partner in a firm, but it may, through its karta enter into a valid partnership with a stranger or with the karta of another family. This decision in my considered opinion is not apposite to the facts and circumstances of the instant case because the alleged partnership deed Exbt.-‘F’ is between mother and the son and not between two joint families. It would reflect from the documents adduced in evidence before this Court that mother Ranu Mukherjee, since deceased was the sole proprietor of Super Engineering Industries and she entered into an agreement of partnership with her son at the fag end of her life. It can be said that the business in the name of Super Engineering Industries acquired the status of a partnership firm only for a period of three days as it stood dissolved automatically with the demise of the mother Ranu Mukherjee by operation of law. The recital in the deed and the wish of the mother was that the business should continue in any event. It means the defendant continued and in continuing the business as a proprietor. Learned Advocate for the plaintiff also referred to a decision in case of Addanki Narayanappa and another Vs. Bhaskara Krishnapp (dead) reported in AIR1966SC1300wherein it has been observed thus, “Where land or any heritable interest therein has become partnership property, it shall, unless the contrary intention appears, be treated as between the partners (including the representative of a deceased partner), and also as between the heirs of a deceased partner and his executors and not real or heritable estate.”
. Reference has also been made to an unreported decision in case of Sambhu Nath Agarwal Vs. State of West Bengal & Ors., decision dated on 17th September, 2013 in W.P. No.2 of 2013 passed by a Single Bench of this Hon’ble Court wherein it has been held that the firm stands dissolved on the death of a partner. I am fully in argument with this submission and hold that after the demise of Ranu Mukherjee mother of the parties the partnership deed Exbt.-‘F’ stood dissolved. It is admitted by the plaintiff Mrs. Malabika Bhattacharyya that the land where the factory Super Engineering Industries is situated at premises No.6/D, Mathur Babu Lane, Kolkata-700 015 is a thika tenant premises and a case is pending before the Controller under Calcutta Thika Tenancy Act. Therefore, the plaintiff is not entitled to claim partition in respect of the land situated at premises No.6/D, Mathur Babu Lane, Kolkata-700 015. In the concluding part of his argument, learned counsel for the plaintiff submitted that the plaintiff does not claim any right in the business of Super Engineering Industries but claimed partition property at premises No.124B, Lenin Sarani, Kolkata-700 013 and premises No.2, Durga Charan Doctor Lane, Kolkata- 700 014. In the context of the discussion above, I find and hold that the plaintiff and defendant have each equal share in the premises No.2, Durga Charan Doctor Lane, Kolkata- 700 014 and premises No.124B, Lenin Sarani, Kolkata-700 013. Thus, the above issues are decided and disposed of favourably. In the result, suit succeeds. Ergo, Ordered that the suit be and the same is decreed in part in preliminary form. It is declared that the plaintiff and the defendant have each equal share in the premises No.2, Durga Charan Doctor Lane, Kolkata- 700 014 and premises No.124B, Lenin Sarani, Kolkata-700 013. The parties do effect partition in its final form by metes and bounds within three months from the date hereof in delicto. Mr. Udayan Chakraborty, learned Commissioner for partition already appointed in this suit is directed to effect partition in terms of this decree of partition in preliminary form. The parties do bear their respective costs and costs in the suit. (SHIVAKANT PRASAD, J.)