1. The genealogy showing the relationship of the parties who figure in this case, will be found at pp. 21-22 of the paper-book.
2. One Kali Churan Ghose left two sons Uttam Chandra Ghose and Gobinda Chandra Ghose. Uttam died about the year 1906 or 1907 leaving two sons Akhil Chandra Ghose and Kokil Chandra Ghose. Akhil died in the year 1912 leaving a daughter Giri Bala Dasi who is the plaintiff in this suit. Kokil was alive up to within two or three years before the institution of the suit. He had a son named Chandi by his first wife, but that son died before Kokil leaving a widow. The defendant No. 1 Santosh Kumar Ghose is the son of Kokil by his second wife. The other defendants in this suit belong to the branch of Gobinda's family.
3. The suit was laid as one for partition in respect of several kinds of property described in schedules (ka) to (chha) to the plaint and there was also a prayer for accounts. The pleadings were not very artistically drawn; but shortly put, the plaintiff's case was that Akhil and Kokil as well as Bishnu and Ambica who were the sons of Gobinda were all members of a joint Hindu family and that all the properties described in the schedules to the plaint were joint properties. On the strength of this allegation the plaintiff claimed an one-fourth share in the said properties.
4. The appeal before us relates only to three items of the properties, namely those described in schedules (kha), (ga) and (cha). It is therefore not necessary to refer to the averments of the defendants in respect of the properties other than the said three properties. Schedule kha property relates to a milk business which used to be carried on at premises No. 15 Sariatulla Ostagar's Lane; Schedule ga property is a two-storied building standing on about three cottas of land being premises No. 15, Sariatulla Ostagar's Lane; and schedule cha a sweet-meat business situated at premises No. 6/3, Maniktolla Road.
5. The case of the defendant No. 1, who is the contesting respondent in this appeal, shortly put, was to the effect that these items of properties belonged exclusively to Kokil, and that neither Akhil nor any of the defendants in the suit had any right or interest therein, and therefore the plaintiff was not entitled to any share in any of these properties.
6. The learned Judge held that in these three properties Akhil and Kokil had equal shares, but that the defendants other than the defendant No. 1 had no concern whatever with these properties, and in that view of the matter he came to the conclusion that the plaintiff would be entitled to a half share in these properties. Inasmuch as the plaintiff had claimed a fourth share therein, the learned Judge held that the plaintiff was entitled to the share which she had claimed. And on the footing of this finding of his, he has made a preliminary decree for partition and for accounts. The learned Judge has said that the plaintiff might have claimed a half share in the properties, but she had actually claimed one-fourth share therein and 'probably' he says: 'this is a just dispensation.' His reasons for coming to this conclusion has been put in these words; It is Kokil and his successor who carefully handled the business and brought about its expansion and the defendant No. 1 should in the ultimate equity of things get the greater share.
7. The controversy in this case has been reduced to a very narrow compass by reason of a finding at which the learned Judge has arrived which seems to us to be supported by ample evidence, and which again it may be pointed out, has not been challenged before us. That finding is that the properties of schedules ga and cha were acquired out of profits of the milk business which is described in schedule kha. In other words the monies used for the acquisition of the land and the construction of the building described in schedule ga were monies which accrued out of the profits of the milk business described in schedule kha and the sweetmeat shop at 6/3, Maniktolla Road, described in schedule cha, which, however, as it now appears from the evidence, has been sold by Kokil's son-in-law Sannyasi, was a business which originated out of the profits of the milk business described in schedule kha (after dismissing the evidence, his Lordship concluded.)
8. The result in our opinion, is that it must be held that the plaintiffs' claim in respect of which she has obtained a decree for partition in the Court below, has been adequately proved.
9. On the question of the decree for accounts which also has been challenged before us by Mr. Basu appearing on behalf of the appellant, there are certain difficulties, and on the whole it would not be right to make a decree for accounts having regard to the circumstances of the present case. Mr. Chakraburtty appearing on behalf of the plaintiff-respondent has very candidly stated before us that it would not be to the advantage of the plaintiff herself to have a decree of this character, because it will entail further expenditure and considerable trouble on her part with no corresponding advantage to be derived therefrom.
10. In the circumstances we think it right to set aside the decree for accounts which has been passed by the learned Subordinate Judge in this case. The appeal, therefore, would stand dismissed with costs subject to the modification noted above. The cross-objection is also dismissed.
11. Before parting with this case I desire to make a few observations in connection with the manner in which the paper-book has been prepared in this case. The two documents Exs. 2 and 2(a) to which reference has been made above, though specially referred to in the judgment appealed from do not appear in the paper-book. It must be well-known to learned Advocates that if documents referred to in the judgment appealed from are not printed in the paper-book by the appellant, the respondent is entitled to ask the Court to uphold the conclusion arrived at by the Court below upon the said documents. In this particular case so far as Exs. 2 and 2 (a) are concerned, the learned Judge has said that these two documents show that Kokil was not averse to allowing the plaintiff a share in the properties. Of course we have looked into these post cards and as we have already stated, it does not appear from the postcards themselves that the shares in all the properties which forms the subject-matter in this suit have been admitted. But even then the respondent is not entitled to ask us to go behind this. When the appellant has omitted to put in his list a document referred to in the judgment of the Court below, he stands the chance of being deprived of the liberty of arguing that the conclusion at which the Court below has arrived on that document is not right.
12. Next, there is a far more serious matter which is disclosed in this case. The deposition of Pramada Bala to which we have referred in course of this judgment and which was a deposition taken on commission has not at all been included in the paper-book. The explanation suggested is that under the Rules of this Court depositions of witnesses are not to be regarded as papers which must necessarily be included in the paper-book. This, in our opinion, is a wrong interpretation of the Rules. I am not surprised that such an explanation has been offered because such an explanation has also been given on some previous occasion as well when such an omission had been discovered. Rule 11 of the Rules for the preparation of paper-books states definitely that Part I of the paper-book shall contain papers of descriptions (a) to (n). Some of these items are marked with asterisks. In Rule 12, Clause (a) it is stated that the list of papers, other than those marked with asterisks in Rule 11 and the exhibits, upon which the decision of the appeal depends and which the appellant desires to have included in Part I of the paper book at his expense, has to be prepared and delivered to the Deputy Registrar. This Rule does not mean that depositions of witnesses! may be omitted unless with the consent of the opposite party, or by a special order obtained from the Court. All that this rule means' is that in the list which is to put in, it is not necessary to include those items which are marked with asterisks, because they all would go in as a matter of course. When therefore it is intended to omit any deposition taken in the course of the trial, either the consent of the opposite party will have to be obtained or at any rate, a special order will have to be obtained from the Court.
13. The disadvantage of having to decide a case on a paper-book which does not-contain a part of the evidence is obvious. But for the fact that our attention was drawn to that evidence by the learned Advocate who appeared for the defendant No. 1, we would have been under the impression that there was no witness examined in the case, of the name of Pramada Bala or that there was any such evidence which she had given to which we have referred.
14. The cost of this appeal is payable by the next friend of the defendant No. 1 appellant to the plaintiff respondent only. The other defendants-respondents will bear their own costs in this appeal.
M.C. Ghose, J.
15. I agree with the conclusion of my learned brother.
16. The dispute in this Court relates to three properties, namely, schedule kha, a milk business at No. 15, Sariatulla Ostagar's Lane, schedule ga, a two-storied building at the same address, and schedule cha, a sweet-meat shop in a rented house at No. 6-3, Maniktolla Road. As regards the milk business and the sweet-meat shop, it was admitted at the Bar that both the businesses have disappeared and are not existing at the present moment. The shops were carried on by Kokil who died about 1925 and since then Kokil's widow carried on for some time with the help of servants. Now both the shops have ceased.
17. The sole dispute is relating to the two-storied building, the land of which was purchased by Kokil in 1917 and the house was built by him shortly afterwards. The purchase of the land and the construction of the building took place about five years after the death of Akhil. From this fact it was strenuously argued that it was the separate property of Kokil and Akhil's daughter the plaintiff could not claim a share in the same. Upon this evidence, however, there is no doubt that the house was built out of the milk business, the parties being by caste, hereditary dealers in milk. This milk business, it is also clear upon the evidence, was not started by Kokil as alleged on behalf of the appellant, but it was a business which was started by his father Uttam, and Kokil was a young boy who was brought up in Calcutta. It is true that Kokil mostly lived in Calcutta and his elder brother Akhil remained in his native village in Arambag sub-division in the district of Hooghly. But all the same the evidence is satisfactory that the two brothers formed a Hindu joint family and as such Akhil's daughter is entitled to the share which the trial Court has allotted.
18. I agree that in all the circumstances of this case the order for taking accounts is unnecessary. The defendant No. 1 was a baby a few months old, or it may be that he was not even born three years before the suit from which date the trial Court directed the taking of accounts. The two businesses are no longer existing. In the circumstances the learned Advocate for the respondent has candidly given up the prayer for accounts.
19. I desire to observe that we were put into an embarrassing position by the learned Advocate for the appellant reading to us all the evidence which was printed in the paper-book, but not bringing to our notice the evidence of Pramada Bala who had given evidence on commission on behalf of the plaintiff and which evidence is relevant in the case. It may be as the learned Advocate argued that it is the option of the party under the paper-book Rules, whether he will print the evidence. But I see no reason or sense in the view that the appellant will have a right to pick and choose what evidence he will print in a case. If he prints all the evidence which is in his favour and omits the evidence which tends to go against him, it will entirely mislead the Court. The whole of the evidence must be printed or at the option of the appellant the whole of the evidence may be omitted, if he chooses to argue the case without referring to the evidence.