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Sachindra Chandra Vs. Hem Chandra Goswami - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1931Cal573
AppellantSachindra Chandra
RespondentHem Chandra Goswami
Cases ReferredRaj Coomari Dasi v. Gopal Chunder Bose
Excerpt:
- .....the preliminary decree for partition against which the present appeal has been preferred that the thakur dalan should be divided in spite of directing that the same be kept ejmali. the second point taken is that the order directing his client to pay the costs of the partition subject to certain reservation is not justified and is opposed to the usual rule for costs in partition suits, namely, that the parties should bear their own costs of suit up to and including the preliminary decree.2. with regard to the first point taken it seems that the argument of the learned advocate for the appellant must prevail. the argument on this point was put in this way. there is no evidence of dedication of this puja or thakur dalan by the original owner. all that has been found by both the courts is.....
Judgment:

Mitter, J.

1. In this appeal by defendant 1 two points have been taken by Mr. Chakravarti who appears on his behalf. It is argued in the first place that the Courts below should have directed in the preliminary decree for partition against which the present appeal has been preferred that the Thakur Dalan should be divided in spite of directing that the same be kept ejmali. The second point taken is that the order directing his client to pay the costs of the partition subject to certain reservation is not justified and is opposed to the usual rule for costs in partition suits, namely, that the parties should bear their own costs of suit up to and including the preliminary decree.

2. With regard to the first point taken it seems that the argument of the learned advocate for the appellant must prevail. The argument on this point was put in this way. There is no evidence of dedication of this puja or thakur dalan by the original owner. All that has been found by both the Courts is that the dalan is used as thakur bari or thakur mondop, that is as a place where the family deity is used to be worshipped. In the absence of any evidence of dedication of this dalan for the purposes of the worship of the idol it is difficult to see how this property can be excluded from partition. The Courts below should have given a direction that this property should be partitioned or, in any event, should have given an opportunity to the parties if they wanted to keep this property exclusively in their possession to pay for the value of the other shares. The Courts below would have been right if having regard to the nature of the property and the fact that some of the coparceners desired that it should continue undivided it passed an order of the description made in the case of Raj Coomari Dasi v. Gopal Chunder Bose [1877] 3 Cal. 514.

3. After hearing the learned advocate for the respondent I think the proper order to make would be this: Let the thakur or puja dalan and the attached verandah be divided if none of the three parties to the partition suit is willing to take exclusive possession of the thakur dalan by paying to the other parties the proportionate share of the value. If they so agree then let the thakur dalan be given to the party who would pay the proportionate share of the value to the other cosharers. If they cannot agree the property must be divided along with the other properties. In the event of either all the three parties or any two of them being willing to take exclusive possession of the thakur dalan and the attached verandah let the dalan and the verandah be given to him who will pay the highest value.

4. With regard to the second point I, think there is little substance in it seeing' that defendant 1 in a sense questioned the title of the plaintiff to partition and the plaintiff's title being disputed by him it is only right that defendant 1 should pay the costs of the plaintiff for making out his title. I do not therefore propose] to interfere with the order for costs made by the lower appellate Court. Subject therefore to the variation with regard to the puja dalan which I have indicated above the rest of the decree of the learned District Judge will stand.

5. As a result of the variation in the preliminary decree it follows that the final decree, dated 1st March 1928, should also be varied in the line indicated in my judgment.

6. There will however be no order as to costs.


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