Sohanlal vs Maganlal

Nigam, J.C.

Maganlal filed Civil Suit No. 102 of 1948 against his brother Sohanlal claiming partition by metes and bounds of the property mentioned in para. 3 of the plaint and also a decree for Rs. 668-14-0 on account of his share of rent up to 31-10-1946 and a decree for rendition of accounts for the subsequent period up to the date of delivery of exclusive possession to the plaintiff.

The plaintiff came to the Court with the statement that soon after the death of their father Rawatji, the parties had separated and had divided their joint family properties in two equal shares. The movable and the Masuda immovable properties were divided by metes and bounds and the Ajmer house alone remained unpartitioned by metes and bounds, hence the suit.

The defendant contested the suit. He did not deny that he was the manager and Karta of a joint family consisting of himself, his sons and a grandson. The defence put forward was that in the year 1927, Rawatji, the father of the parties, made a family arrangement whereby the house of Ajmer was allotted to the defendant and one house and two Nohras had been allotted to the plaintiff. The case was that only the outstanding ornaments as well as the household articles remained joint. The defendant also pleaded that he had constructed two storey in the Ajmer house at his own costs. Adverse possession was also pleaded and it was prayed that the plaintiff''s claim for partition of the Ajmer house be dismissed and the ornaments, cash and other household articles left by Rawatji be divided.

The learned Subordinate Judge held that there was no partition in the year 1931 as alleged by the plaintiff and there had been no family arrangement in 1927 as alleged by the defendant, that the properties at Ajmer and Masuda continued to be joint and would now be liable to partition, that the court-fee paid was sufficient, that the second and third storeys in the Ajmer house had been constructed out of joint family funds, that the defendant had not become owner by adverse possession and that the suit was not bad for non-joinder of Beer Singh. In the event, the learned Subordinate Judge declared that the parties were entitled to half share each and granted a decree for partition of Ajmer and Masuda house properties. The learned Subordinate Judge left the question of (sic) on the Masuda properties open and reacted the defendant to render account of the come and expenditure of the Ajmer property from 18-2-1942 up to the present date. Against that'' Judgment and decree, Sohanlal, defendant, has come up in appeal. I have heard the learned counsel for the parties.

The first contention of the learned counsel (sic) the appellant is that as soon as the learned (sic) Judge held that there had been no partition between the parties in the year 1931 as was (sic) by the plaintiff, the suit should have been dismissed being a claim for partial partition. The learned counsel for the respondent has urged that objection was taken on this point and no sue was got framed on the point. The learned counsel for the appellant has countered with the intention that the question, being one of law an be raised in the first appeal if it arises out facts Admitted or proved to the satisfaction of the Court. I am of opinion that this question (sic) be, raised at this stage.

The learned counsel for the respondent has (sic) that, in fact, there had been a partition as (sic) by the plaintiff. The learned counsel (sic) that it was found as a fact that the propriety at Ajmer had been partitioned between the arties and that they were merely tenants-in-common.

The learned counsel also refers me to the evince that on local inspection, the learned trial (sic) found that, the parties were in separate session of the properties at Masuda. I have (sic) been referred to the evidence contained in s. P/12-P/23, Ex. 27 and Exs. 115-123 to (sic) that certain of the outstanding due to the others were divided between them. The learned (sic) has also referred me to Exs. P/5, 6, 7, 8. It is suggested that from this it appears that there had been a complete partition of the outstanding and the movable properties between brothers. I am, however, unable to attach (sic) considerable Weight to this evidence. Ex. 5 merely ah admission in favour of the plaintiff (sic) Exs. 6-8 do not lead to any definite confluent by themselves. They are also admissions in over of the plaintiff.

Thus while there is some evidence to show that e parties became tenants-in-common of the properties at Ajmer and divided some of the outstandings between them, there is no satisfactory evidence to indicate that all the outstandings or She ornaments, household effects and the properties at Masuda were in fact partitioned between the parties by allotment of shares or by (sic) and bounds partition. I am, therefore, of (sic) that it cannot be held that there had a partition between the parties in the year (sic).

To revert to the question whether the plaintiffs, suit should have been dismissed for (sic) partition. I am unable to agree that any such course was necessary. In the plaint it was (sic) that there had been a separation between brothers and each of them was the head of Joint Hindu family consisting of himself and descendants. This position was not challenged the defendant. No objection as to the suit (sic) liable to dismissal on account of partial (sic) was actually raised.

The learned counsel for the appellant has referred me to � ''Rajendra Kumar v. Brojendra (sic), AIR 192 Cal 501 (A). Their Lordships (sic) the cafe for retrial to the trial Court reacting that all the properties owned by the two brothers should be Included in the suit. On behalf of the plaintiff, his learned counsel has stated, that he has no objection to all the properties being thrown in the hotchpot and partitioned or re-partitioned between the parties. It is, however, necessary for the Court, to determine the properties which will be partitioned.

There is no doubt that the house at Ajmer, the house at Masuda, the two Nohras at Masuda and the five Bighas of agricultural tenancy land at Masuda must be partitioned between the parties. The defendant also claims that there must be a partition of 88 tolas of gold and 400 tolas of silver ornaments, outstandings to the extent of Rs. 4,000/- and household effects worth about Rs. 1,000/-. Certain details were given in the better particulars furnished on 22-12-1948. From, the evidence it appears that at least some of the outstandings had been divided between the parties. It will, therefore, be for the defendant, to give full particulars and prove the existence of the ornaments, household effects and the outstandings left by the parties'' father.

After recording the parties'' evidence the learned, trial Judge will prepare a list of items that must be included in the partition. So far as outstandings are concerned, it must be specified from whom they are due or by which of the brothers they had been realized. So far as ornaments and household effects are concerned, it will be necessary to clearly specify which of the brothers is in possession of each item and is accountable for the same.

The next point urged by the learned counsel is in respect of the Masuda property. It is urged that the plaintiff must be held to account for such income as he might have realized from the property at Masuda. It appears that parties-are in possession of separate portions. The plain tiff claims certain amounts for improvements to the house at Masuda. He will not be entitled to any amount unless it is proved that he has spent in excess of his share, that is he has, after taking this expenditure and the benefits that the parties have drawn from the house into consideration, actually spent more than he need have.

The learned counsel for the appellant has next urged that the learned trial Judge was wrong in granting a decree for rendition of accounts of the Ajmer property from 18-2-1942. The only objection of the learned counsel is that for the period up to 31-10-1946 the plaintiff had claimed, a sum of Rs. 668/14/-. It is urged that it should not be competent to the Commissioner to grant a decree in excess of this amount for the period-ending 31-10-1946. I accept this contention.

The last point urged by the learned counsel is that the second and third storeys in the house at Ajmer were constructed by the defendant at his own cost. The learned counsel has urged that the defendant had constructed the third storey by borrowing money from Narsinghdas. The defendant had himself admitted that he re-imbrued himself in part. The learned counsel is unable to state what amount was not re-imbrued to the defendant. In these circumstances, I am unable to hold that the finding of the learned trial Judge is incorrect, and that the second and third storeys or any part thereof were constructed by the defendant at his own cost. The result is that the decree granted by the learned Subordinate Judge is amended.

The learned trial Judge will make out a list of movables, i.e., household effects, ornaments and outstandings that must be included in the partition, i.e., the belongings of Rewatji which were in possession of either brother at the time of his death. He will also include the agricultural land at Masuda in the partition. The decree granted to the plaintiff in respect of expenditure on the Masuda property and in respect of rents due up to 31-10-1946 in respect of the house at Ajmer will toe in accordance with the remarks above.

With this amendment, I confirm the decree granted by the learned Subordinate Judge. As regards costs in this appeal, the appellant will pay three-fourth of the costs of the respondent and receive one-fourth of his costs from him.