RFA 7/2003 BEFORE HON’BLE MR. JUSTICE AFTAB H. SAIKIA HON’BLE MR. JUSTICE H. BARUAH Saikia, J. Heard Mr. G.N. Sahewalla, learned Senior Counsel assisted by Ms. S. Senapati, learned counsel for the appellant. Also Heard Mr. A.K. Bannerjee, learned Senior Counsel assisted by Ms. P. Chakraborty, learned counsel for the R espondent No.1, Mr. B.K. Goswami, learned Senior Counsel assisted by Mrs. T. Gos wami, learned counsel for Respondent No.2, Mr. C.K. Sarma Baruah, learned Senior Counsel assisted by Ms. A. Dey, learned counsel for Respondents Nos. 3 and 15 a nd also heard Mr. A.K. Goswami, learned Senior Counsel assisted by Ms. B. Sharma , learned counsel for the Respondents Nos. 4,6 and 8. 2) This First Appeal has been directed against the judgment and dec ree dated 24/12/01 passed by the learned Civil Judge(Sr.Divn.), No.1, Cachar, Si lchar in Title Suit No.23/87 on being preferred by the defendant No.7/appellant (hereinafter referred to as ’the appellant’) against the plaintiffs Nos. 1 and 2 /respondents (hereinafter referred to as ’the respondent Nos. 1 and 2’) who in stituted the Title Suit being T.S. No.23/87 seeking for declaration of right, ti tle and interest to the extent of 7/20 share of the movable and immovable proper ties described fully in Schedules to the plaint including business in 3(three) C inema Houses, cash money in gold and silver mortgage business and Banking accoun ts etc. and for a preliminary decree fixing the extent of the entire joint famil y properties of the plaintiffs and of the Defendant Nos. 1 to 15 and their prede cessors in cinema business, gold and silver mortgage business and in other busin esses from the year 1970 and onwards after the death of Kanailal Lala, the husba nd of the plaintiff/respondent No. 2 and the court be pleased to take over the m anagement and administration of the said properties and the plaintiffs/responden t Nos.1 and 2 be awarded monthly maintenance according to their respective share in the properties, or the mense profits to which they are entitled according to the extent of their share after accounting and for partition of their entire di visible joint family properties, cash amount and other moveable and immoveable p roperties and for preparation of an allotment of properties according to plainti ffs/respondents share in all such joint family properties and deliver possession of such allotment in moveable and immoveable properties falling in such allotme nts. 3) The facts that are necessary and important for resolution of the basic issues raised in the instant appeal may be narrated. The predecessors-in-interest of the appellant and the respondent Nos. 1 and 2 we re Late Kisoon Lal Lala and Late Bisoon Lal Lala, who were uterine brothers and sons of Late Behari Lal Lala. The genealogy of the Lala family deserves mentioning herein as below: BEHARI LAL LALA __________________________________?_________________________ ? ? Kisoon Lal Lala(died 1943) (Bisoon Lal Lal a (died 1954) Wife -Kalabati Devi -No issu e ? Wife-Parbati Devi(died i n 1963) _________________?____________________________________________________________ ___________________________ ? ? ? ? ? ? ? Harilal Lal Lala Mohan Lal Lala Ram Dayal Lala Kanailal Lala ? ? (died 14.7.44) (died 2.12.78) (died in 1.7.7 3 (died on 16.12.69) ? ? wife-Ahalya Lala as Bachelor ) No Issue -wife Bhanumati Devi ? ? (Plaintiff No.1/Respondent No.1) ? (Plaintiff No.2) ? ? _______ ?_______________________ ? (Respondent No.2)? ? ? ? ? ? ? ? Sushila(Df.No.10) Anila Devi(Df.12) Maya Lala ? ? ? died 1997 (Df.11) ? ? ? Df.12(1) to 12(6) ? ? ? ? ? ? ______________________________________________________?_________________ _________ ? ? ? ? ? ? ? ? ? ? ? ? Wife Sabitri Lala Motilal Lala Monoj Lala Dipak Lala Rina Lala Bina Lala Rita Lala Mina Lala ? ? Df. 1(died in 1999) (Df. 2) (Df. 3) (Df. 4) (Df.6) (Df.7) (Df.8) (Df. 9) ? ? wife-Anima Lala (Appellant) ? ? (Df.. 15) (Defendant No.7) ? ? ? Nanki Devi Girija Devi Lala (Df.13) (died 1971) (died 2003) ? _ ________________________?_____ Rajen Bania ? ? ? ? (Df.14) Santa Ram Durga Prasad Tulsi Basanti (died in 94) (died) 4) Kisoon Lal Lala died in 1943 leaving four sons, namely, i) Harih ar Lal Lala who died on 14/7/44, the husband of the plaintiff/respondent No.1, i i) Mohanlal Lala who died on 2/12/78 , the father of the appellant, iii) Ram Day al Lala who died bachelor on 1/7/73, 4) Kanai Lal Lala who died issueless on 16/ 12/69 leaving behind him his wife, the plaintiff/respondent No.2 and two daughte rs, namely, a) Nanki Devi (died on 1971, the mother of defendant No.14) and b) G irija Devi Lala, the defendant No.13 who died in 2003. 5) The claim of the plaintiffs/respondents Nos. 1 and 2 was that th e properties both moveable and immoveable in question described in the Schedules basically were joint family properties and they, being the members of the Hindu undivided family, were entitled to get their respective share of 7/20 in entire both movable and immovable properties. 6) According to the respondents Nos. 1 and 2, both Late Kisoon Lal Lala and Late Bisoon Lal Lala settled at Central Road, Silchar Town since their father’s time about one hundres year back by adopting the laws of the land inclu ding customs in the matters of marriage, succession etc. and were in joint mess and properties. Late Bisoon Lal Lala acquired special skill in gutting Tennis a nd Badminton rackets and started business in sports goods and opened Cachar Spor ts Works at Central Road, Silchar dealing in sports goods for Golf, Polo, Tennis etc. That was closed down after independence when British Planters left Cachar . Besides that, in the initial stage, the two brothers carried on busine ss of Penny Carts and money lending business against security of gold and silver ornaments and lumps. Both the two brothers earned enormous fortune. Late Biso on Lal Lala was pioneer in motor transport business in the Cachar District. In 1921/1922 Bisoon Lal Lala became 1st Motor Car and Motor Bus owner in Cachar Dis trict. The two brothers amassed properties in cash and kind while living in joi nt mess and properties. Money lending business against security of gold and silv er started by them still exists. 7) Bisoon Lal Lala died issueless in the year 1954 leaving behind h is widow Smt. Parvati Devi who also died in 1963. 8) Late Harihar Lal Lala being the eldest son joined the business o f his father and uncle and assisted Bisoon Lal Lala. A plot of land at Central Road was taken on lease and a grocery shop was opened, but closed down later on. Harihar Lal Lala took initiative in Cinema Business and started a Cinema Hall styled as Kalabati Cinema Hall at Silchar in the year 1939-40 constructed over t heir homestead land at Central Road, Silchar. Bisoon Lal Lala arranged machineri es and equipments from Sukhamoy Sinha, Ambakapatty, Silchar, on hire basis. 9) Kalabati Devi was wife of Kisoon Lal Lala predeceased her husban d Kisoon Lal Lala who died in 1943. In 1943, Harihar Lal Lala, in consultation with his uncle Bisoon Lal Lala purchased requisite engine, machinery , and other equipments. By that time Mohan Lal Lala, Ram Deyal Lala and Kanai Lal Lala joi ned the joint family business and Kanai Lal Lala took up the management of said cinema business. Licence of Kalabati Cinema Hall was obtained in his name. Kan ai Lal Lala died in 1969. Licence of the Cinema Hall was subsequently transferr ed to plaintiff/Respondent No.2, Smti. Bhanumati Lala, wife of Late Kanai Lal La la in 1981. 10) The family of Kisoon Lal Lala with his sons and daughters lived in joint mess and property with Bisoon Lal Lala and his wife Parvati Devi and th ey by their joint effort developed business and acquired common interest. Bisoo n Lal Lala, after death of Harihar Lala, engaged Mohan Lal Lala in looking after and assisting him in family business as he was surviving eldest son of the fami ly. The daughters of Late Kisoon Lal Lala, i.e. Defendant No.13 and the mother of defendant No.14 were given in marriage before 1935. Mohan Lal Lala was mostl y engaged to look after sports goods business, money lending business and pony c art business started by Late Bisoon Lal Lala. Kisoon Lal Lala died in the year 1 943. 11) Late Bisoon Lal Lala established Annapurna temple, a famous t emple, on the bank of river Barak, at Silchar, with deity of ’Mother Annapurna’ still being revered by the people. The idol was brought by Bisoon Lal Lala. The land of the temple was the property of Lala joint family and was described in S chedule -1 to the plaint. The structure of the temple was described under Sched ule -1(A). The Deities of the temple were provided with valuable ornaments of g old and silver described under Schedule -1(B). Valuable furnitures were describ ed under Schedule 1(C). Item Nos. 5 to 8 of the said Schedule were in use of th e deities and properties described under item Nos.1 to 4 remained in custody of plaintiff/respondent No.1 for use during ceremonies and festivals. 12) Both Late Kisoon Lal Lala and Late Bisoon Lal Lala lived in thei r homestead at Central Road, Silchar Town on verbal agreement with the predecess or of defendant Nos. 19 to 25 who were landlords residing at village Mashi junde r, Karimganj District. Subsequently, on 16.2.1942 both the brothers took settle ment of said land from their landlord by executing a bilateral deed of lease. T he present house on said land were constructed at the time of Bisoon Lal Lala an d Kisoon Lal Lala from the income of their joint family business. Subsequently, remaining brothers namely Mohan Lal Lala, Ram Dayal Lala and Kanai Lal Lala, pu rchased Maliki right over said homestead land by a kabala dated 6.1.1965 from sa id landlords. The homestead land and house standing thereon were described unde r Schedule-II and Schedule -II(A). Mohan Lal Lala and his two brothers jointly purchased 6 kathas of land from said landlords described in Schedule-III while living in joint mess and properties and from the income of their aforesaid busin ess. 13) Late Bisoon Lal Lala made negotiations for purchase of propertie s of Messrs. Gitashree Cinema at Central Road, Silchar and accordingly Mohan Lal Lala was deputed by Bisoon Lal Lala, as he was the eldest son, to Calcuta for t he purpose. Subsequently, the properties were purchased in consideration and a document was executed on 31.3.1953 by the partners of Messrs. Gitashree Cinema i n favour of Mohan Lal Lala. The entire machinery, furniture, fittings and fixtu res were purchased on that occasion and common fund of the joint family was spen t for the purpose. Thereafter the name of the Cinema House was changed to Annap urna Talkies after Bisoon Lal Lala renovated the building of said cinema house w hich was rented house. Mohan Lal Lala as eldest son took up management of the ci nema business assisted by his younger brothers. Requisite licence was obtained in his name. Bisoon Lal Lala opened the cinema House inviting respectable perso ns of the town and soon thereafter he died. The machinery, furniture, fixtures and equipments still exist and were described in Schedule-IV. The three brother s made the cinema business a profitable business. The licence of the Cinema Hal l still now remained in the name of Mohan Lal Lala though he died in 1978. 14) Mohan Lal Lala, in consultation with his younger brothers and fo r the purpose of extension of Cinema business and in the capacity as Karta of th e family purchased lease right of land described in Schedule-V of the plaint wit h house thereon described in Schedule-V(A) to the plaint and machinery, furnitur e, fixtures and equipments described in Schedule -V(B) to the plaint from one Sh anti Lal Sen Gupta and others who were owners in possession by Kabala dated 17.5 .1957. Ram Dayal Lala was the In-charge of this cinema at Hailakandi carried ou t in the house under the name and style Biswanath Talkies. He died bachelor on 1.7.1973. 15) Mohan Lal Lala took over management of Kalabati Talkies after de ath of Kanai Lal Lala, husband of plaintiff No.2, on 16.12.1969. He was also ma naging the original business of money lending against security of gold and silve r since the day of Bisoon Lal Lala and Kisoon Lal Lala. Mohan Lal Lala, who was Karta of the family, was in the control and supervision of entire business of t he family after the death of Bisoon Lal Lala. In money lending business no rece ipt was issued to the borrowers against gold and silver ornaments and lumps depo sited as security. Signature of the borrower was obtained on a paper wherein de scription of times deposited were written. The items were preserved in a packet against a serial number. A register of accounts is maintained. All necessary particulars were entered into Gold Control Ordinance was promulgated by Union Go vernment in 1961 and enactment was made and it became necessary for Mohan Lal La la to obtain a licence from appropriate authority for carrying on said business. He had to make to some declarations. The licence was so obtained from Assista nt Collector, Land Customs and Central Excise, Silchar. Gold and Silver ornament s in custody were declared by Mohan Lal Lala in the interest of family. The lic ence of said business still remained in the name of Mohan Lal Lala on renewal. Mohan Lal Lala and his brother Ram Dayal Lala disposed of huge quantity of gold and silver ornaments immediately after the promulgation of the ordinance. The g old and silver ornaments received in course of business were kept in custody of Mohan Lal Lala along with registers and accounts of money lending business. 16) The heirs of Upendra Mohan Roy, the lessee of land and owner of houses of Annapurna Talkies entered into a contract of sale of said properties w ith Mohan Lal Lala who paid Rs.40,000/- as advance out of consideration money of Rs.60,000/- in 1967. As the vendors did not execute sale deed, defendant Nos.1 to 9 as heirs of Mohan Lal Lala filed T.S. No.76 of 1977 in the court of the As sistant District Judge, No.1, Cachar. The suit was decreed ex-parte. Kabala wa s executed by way of deposit of balance consideration money in court. Common Fu nd of the family was utilized for purchase of the properties. Mohan Lal Lala be fore this purchase, purchased land described in Schedule-VII to the plaint by ut ilizing joint family fund. Mohan Lal Lala endeavoured to construct a modern Cin ema House. The building materials collected were described in Schedule -II(C). Huge amount was expended from the family fund. Mohan Lal Lala and Ram Dayal La la purchased another plot of land described in Schedule -VII on 22.3.1970 from j oint family fund in custody of Mohan Lal Lala. But it came to the notice of the plaintiffs/respondent Nos. 1 and 2 in June, 1982 that Mohan Lal Lala along with defendant No.13, Girija Devi Lala sold away said land ignoring the title and in terest of the plaintiffs/ respondents Nos. 1 and 2 in the land. Defendant Nos. 1 6 to 18 were in possession of said land knowing it well that the plaintiffs/ res pondents Nos. 1 and 2 and other co-sharers had ejmali interest therein. 17) Smti Parvati Devi, widow of late Bisoon Lal Lala died in 1963 af ter she became absolute owner of 1/2 of the properties of joint family acquired by her husband and Kisoon Lal Lala and also properties acquired after his death. Mohan Lal Lala developed an attitude to deprive the plaintiffs/respondents Nos. 1 and 2 from their legitimate interest in the properties owned and possessed b y joint family members taking the advantage of the situation that Hari Har Lal L ala had no male issue except his three daughters, namely, Sushila (defendant No. 10), Anila Devi (Defendant No.12) and Maya Lala (Defendant No.11) and Kanai Lal Lala being issueless. 18) The properties described in the Schedules to the plaint were joi nt family properties acquired during the life time of Kisoon Lal Lala and Bisoon Lal Lala and subsequently from the income of said acquired properties, Kanai La l Lala, the youngest of the four brothers married in 1964 and died in 16.12.1969 leaving behind his widow, plaintiff/respondent No. 2 who was the sole heir of t he interest of her husband in the properties. Plaintiff No. 2, Bhanumati Lala co ntinued to live in the joint family. After the death of Bhanumati Lala’s husband , Mohan Lal Lala and his sons and daughters and his wife began to misbehave with plaintiff No. 2. But so long Ram Dayal Lala was alive he protested. Subsequentl y the messing of the family was separated. The plaintiffs with daughters of plai ntiff No. 1 came into one messing and defendant Nos. 1 to 9 and Mohan Lal Lala i nto the another messing within same homestead. 19) The maintenance of the family members was borne from income of j oint family business. 20) Ram Dayal Lala died in 1973. After his death it became difficult for plaintiff No.2 to live in the family. She was often subjected to torture an d humiliation. Under the circumstances she left for her father’s house on 2.12.1 978. 21) Mohan Lal Lala met with sudden death on said date after her depa rture. After the death of Mohan Lal Lala his heirs are defendant Nos. 1 to 9 bec ame more aggressive and humiliated plaintiff No. 1 and her daughter. One of the daughter died as a result of such torture. 22) Moti Lal Lala, defendant No. 2 came in the control of entire fam ily properties after the death of his father Mohan Lal Lala. He initially contin ued to pay maintenance as was done by Mohan Lal Lala from family fund. But later on he stopped it. On 18.2.1980 some of the defendant Nos. 1 to 9 assaulted plai ntiff/respondent No.1 and her daughters. Police registered a case and proceeded. Subsequently the complaint was withdrawn on assurance of defendant Nos. 3 and 4 not to ill-treat plaintiff/respondent No. 1 and her daughter. Defendant Nos. 1 to 4 in the meantime drove away the sons of defendant No. 13 though they had rig ht over joint family properties Defendant No. 14 was also implicated in false ca se by Mohan Lal Lala and got him arrested by police. 23) Attempts were made since the days of Mohan Lal Lala to remove th em from joint family business in order to grab the entire property. 24) Defendant No. 2 married defendant No. 15 who hailed from a Brahm in family. The marriage was inter-caste marriage. Defendant No. 2 and other defe ndants misappropriated huge amount of money from joint family fund. Defendant No . 2 with some ulterior motive purchased the properties described in Schedule-XII in the name of defendant No. 15. Defendant No. 2 also constructed one Cinema ho use at police pool by utilizing the fund of the joint family, In fact none of de fendant Nos. 2,3 and 4 had any source of independent income. The Cinema house at Poila Pool and the properties of the cinema house were described in Schedule XI II. 25) It came to the knowledge of the plaintiffs/respondent Nos. 1 and 2 that false tax returns were submitted by Mohan Lal Lala manipulating the acco unts of joint family business and showing the interest of the plaintiffs/respond ent Nos. 1 and 2 therein. Mohan Lal Lala convinced Kanai Lal Lala and Ram Dayal Lala to form a partnership business among themselves for convenience of joint fa mily business, particularly to lessen payable amount of income tax. Various matt ers were concealed and untrue declaration were given for creation of partnership . This partnership of three brothers was not acted upon and was used for the pur pose of income tax only. The facts came to the knowledge of the plaintiffs/respo ndent Nos. 1 & 2 after the death of Mohan Lal Lala. The plaintiffs/respondent N os. 1 and 2 were kept in dark while submitting such returns. Subsequently it cam e to the notice of the plaintiffs that the signature of plaintiffs/respondent No . 2 had been forged. The returns submitted to sales tax Authority regarding sal e of tickets differed from the statements submitted to various distributors. M/s . Madhu Sudan Films (O) Ltd. Guwahati was the broker. Defendant No. 2 spent huge amount for comfort and luxury. Defendant No. 2 also purchased the Motor Car and Revolver mentioned in Schedule-II(D) which were the properties of the joint fam ily. Defendant Nos. 1 to 9 also purchased luxurious items including motor car, r efrigerator, cameras from common fund. Those were described in Schedule-II (D). Defendants were earning from different Bharatias, from market complex, and fro m Motor Transport Station under the style Network Travels opened by them. The in come from these sources and the persons who were earning as such are described i n Schedule XIV to the plaint. 26) As already noted, Kisoon Lal Lala died in 1943 leaving behind 4 sons and two daughters and as such four sons got 1/8th share in the entire prop erty. Harihar Lal died in 1944 and the life estate so long held by his widow pla intiff/respondent No. 1 became absolute after Hindu Succession Act, 1956 came in to force in 1956. Kanai Lal Lala inherited 1/4th share in the properties of his father and as such plaintiff/respondent No. 2 inherited said share in absolute interest. Smti. Parvati Devi, wife of Bisoon Lal Lala died issueless in 1963 an d as such her 1/2 share in the joint family properties was inherited by the heir s of her husband i.e. (1) Mohan Lal Lala (2) Ram Dayal Lala, (3) Kanail Lal Lala , (4) Smti. Girija Devi and (5) Smti. Nanki Devi . Each of them got 1/10th share . Ram Dayal Lala had interest to the extent of 9/40th share. That share was inhe rited by Mohan Lal Lala and Smti. Girija Devi by 1/10th share. Nanki Devi died i n 1971. Under the circumstances plaintiff/respondent No.1 got 1/8th share and pl aintiff/respondent No.2 got 9/40th share in the properties. 27) Defendant Nos. 2 to 4 being the male members in the family were maintaining the affairs of the family business and they were appropriating all i ncomes along with defendant No.1, their mother and Defendant No.5 to 9 depriving the plaintiffs/respondent Nos. 1 and 2. Defendant Nos. 1 to 9 were misappropri ating properties including cash and ornaments which were in their custody. So t he plaintiffs/respondent Nos. 1 and 2 asked the Defendant Nos.1 to 9 to get the joint family properties separated. 28) The plaintiffs/respondent Nos. 1 and 2 could come to know that t he Defendant Nos.2 to 4 constituted fake partnership firm under the name and sty le of M/S. Lala Brothers and also submitted returns suppressing the interest of the plaintiffs /respondent Nos. 1 and 2 in the joint family properties. 29) Petitions for partition were submitted before Collector, Cachar, and P.P. cases were registered for partition of revenue paying estates. Those cases were disposed of refusing partition on the ground that the names of the pl aintiffs/respondent Nos. 1 and 2 did not appear in the pattas. 30) The plaintiffs/respondent Nos. 1 and 2, therefore, prayed for de claration of their right, title and interest to the extent of 7/20th share of th e moveable and immoveable properties, for preliminary decree for fixing extents of share of plaintiffs and defendant Nos.1