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GOURI DUTT MAHARAJ V/S HIRALAR MAHARAJ, decided on Friday, March 4, 1983.
[ In the High Court of Calcutta, Appeal No. ---------. ] 04/03/1983
Judge(s) : P.K. BANERJEE & R.K. SHARMA
Advocate(s) : A.K. Banerjee, R.K. Banerji, R.N. Mittal, Ramen Mitter, Saktinath Mukherjee.
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gouri,dutt,maharaj,hiralar,maharaj,

  "1983 (1) CalLT 267"   ==   "1982 (87) CalWN 530"  







judgment - (1) THIS appeal is at the instance of the defendant no. 2 against the preliminary decree for partition. The suit was brought by the plaintiff who was a minor represented by her mother against the defendants including the defendant no. 3 who is the father of the plaintiff no. 1. The plaintiff no. 1 being minor was represented by her mother. In that said suit the plaintiff no. 1 claimed that they are governed by the Mitakshara School of Hindu Law and the plaintiffs and the defendants belongs to joint Hindu family. It is alleged that during the life time of the plaintiff no. 1s grand-father; Late Ramchandra Sharma was the karta and managing member of the said joint family and on account of his old age his eldest son Late Rameswar Prasad Sharma used to look after the joint family properties and business and after the death of Late Ramchandra Sharma the said Rameswar Prasad Sharma was the Karta and since his death on 14-10-36 the defendant no. 1 has been the Karta of the joint family. The defendant no. 4 is the elder brother of the plaintiff and the said Rameswar Pr. Sharma adopted the defendant No. 4 as his son on 5-9-34. the defendant No. 12 is the widow of the said Rameswar Pr. Sharma and adoptive mother of the defendant no. 4. The genealogical table as hereinbefore stated of the parties to the litigation is attached to the judgment as Appendix a. In the plaint the plaintiff no. 1 claimed 1/12th share in respect of the joint family properties. From the Geneological Table it has been found that the plaintiff is one of the co-sharers of one branch out of the 4 branches and she claimed 1/12th share that is 1/3rd or 1/4th share in the joint family properties. Similarly it will be found that the defendants nos. 7 and 8 claimed 1/27th share of the joint family properties out of the one branch of the Geneological Table. It will be found from the written statement filed by the defendants nos. 7 and 8 page 520 paragraph 13 as follows :-that this defendant is in possession in his 1/27th share in the suit properties and in all joint family properties business assets funds incomes profits etc. This defendant wants partition and accounts to the extent of 1/27th share in the same. These two written statements filed by the minors mother were accepted after rejection of the written statement filed by the pleader-guardian on behalf of the minor. It is not necessary for me to state the other facts in view of the preliminary point taken by Mr. Mitter on behalf of the plaintiffs respondents namely that against these two persons who are respondents in the appeal that is respondents nos. 8 and 14 the appeal was dismissed by order of this Court on 30th July 1970. In view of the dismissal of the appeal as against these two defendants this appeal cannot continue and must be said to have been abated. (2) MR. Ranjit Kumar Banerjee on behalf of the appellants contended that the minors respondents nos. 6 and 8s father is also represented as respondent nos. 6 and therefore he represented the minors and relied upon the case reported in 40 I. A. 151 at 155. It appears to me however in the facts and circumstances of the case that the minors have claimed interest adverse to their father and therefore the father cannot represent the minors and in fact in the Court below the minors were represented firstly by pleader guardian and thereafter on removal of the pleader guardian by their mother. (3) MR. Saktinath Mukherjee on behalf of the appellants however contended with reference to the decree passed in the matter. In view of the decree passed the partition between the parties was branch-wise partition and no allotment of co-parcenary wise as between the same branch was allowed and therefore non-representation of the two minors or for their absence the appeal does not abate as a whole. I have already said that the plaintiffs claimed 1/12th interest in respect of the joint family properties quite plainly means the suit was not for partition as between the branches but even among the co-sharers of each branch. The plaintiff applied for a decree of 1/12th share in the joint family properties. The defendants nos. 8 and 14 applied for 1/27th share of the joint family properties or on the other hand a coparcenar of each branch claimed their share within branches also. (4) STRONG reliance was placed by Mr. Mukherjee in the case reported in A. I. R. 1922 Patna 96 (Moulvi Md. Musa vs. Edal Singh) wherein the Patna High Court held that under the Hindu Law it is open to the grand-sons to claim partition as against their grand-fathers. In a suit of partition between sons and their fathers grandsons are proper parties but not necessary parties. It is open to the grand-sons to claim partition as against their grand-fathers. Their Lordships of the Division Bench of the Patna High Court held further that they were fully represented in the action by their father and there is no prejudice to their interest by the decree which has been pronounced by the learned Subordinate Judge. It is clear from the written statements filed on behalf of the minors that they had claimed interest and they were claiming their shares in respect of the joint family properties in the partition suit in which the branch wise partition is being made but the coparceners of a particular branch also claimed to have his share. This is exactly what had been held in the last portion of the judgment by the Patna High Court that if however the added defendants wish to have shares allotted to them they must apply to the Court for that purpose. (5) IN a case reported in A. I. R. 1932 Lahore 641 (Bishambar Das vs. Kanshi Parshad) on which the appellants relied it has been held by the Lahore High Court that where the suit is not for partition of the properties between all the alleged coparceners inter se but one for a division between the two branches of the family it is settled law that to such a suit the really necessary parties are the heads of each branch of the family and it is not obligatory on the plaintiffs to implead all the members of the two branches. The suit can therefore proceed if the head of plaintiffs branch is the sole plaintiff and heads of defendants branches the sole defendants and any decree passed in suit would be binding upon their descendants. The death of one of the sons of the plaintiffs branch and the omission of the name of such son from the record does not affect the decision of the case. In other words the Honble Judges of the Lahore High Court decided that if it is branch-wise partition the heads of the branches are necessary parties and not their sons. But in the facts and circumstances of the case however in my opinion it is quite different. Here the plaintiff himself as one of the co-sharer of a particular branch has applied for 1/12th share in the joint family properties. In the plaintiffs suit the defendants and their co-sharers in different branches were also added as parties and some of the defendants have applied by filing written statements for making a partition as between the co-parceners of a particular branches. Therefore in my opinion the Lahore High Courts judgment does not help in so far as we are concerned in the present case. (6) IN a case reported in A. I. R. 1935 Patna 241 (Churaman Mahto vs. Bhatu Mahto) it has been held that in a suit for partition no decree can be passed in the absence of a single co-sharer. It was also held that where the death of one of the respondents does not make the representation of the interests involved incomplete there is no abatement and the appeal can proceed; but where such death makes the representation incomplete an abatement of the appeal as a whole takes place. In the present case representations by the respondents nos. 8 and 14 are totally absent and they have already filed written statements claiming interest adverse to their father and therefore when they are not at all represented in the appeal before us the appeal as a whole abates. (7) THE case reported in A. I. R. 1965 S. C. 1409 (Daya Ram vs. Shyam Sundari) does not help the appellant at all. In the said case the Supreme Court held that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law there is no abatement of the suit or appeal the impleaded legal representatives sufficiently represent the estate of the deceased and a decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record. (8) IN the present case however these persons who are not before us were made parties in the appeal but due to the default of the appellant the appeal stood dismissed as abated against them and this is a suit for partition and they are admittedly co-sharers and claimed a particular share in respect of the joint family properties. In the facts and circumstances of this case therefore the persons who are made parties and for the laches of the appellants are not represented and the decree as against them cannot be challenged. The case of the Supreme Court has no application. (9) RELIANCE was placed by Mr. Mukharjee on the judgment of the Supreme Court reported in A. I. R. 1979 S. C. 1393 where an order of substitution has been made in the main appeal but in the cross-appeal the deceased has not been represented. Their Lordships of the Supreme Court held that the cross-appeal would not abate. In the present case neither in the present appeal nor in the cross-objection filed by the parties the respondents nos. 4 and 8 in the main appeal were at all represented and the appeal as against them stood dismissed. (10) IN that view of the matter in my opinion it is clear in the facts and against the respondents nos. 8 and 14 stood dismissed by the order of this Court on 30th July 1970 and this being a partition suit between the co-parceners and Mitakshara Hindu family in each branch the coparceners of a branch claimed separate share within the branch the appeal must abate as a whole. We therefore hold that the appeal in view of the non-representation of the respondents nos. 8 and 14 their definite interests into the properties and definite undivided share in the co-parcenary properties have abated as a whole. The appeal must therefore stand dismissed. There will be no order as to the costs. In view of the order passed in the main appeal all the cross-objection must also stand dismissed by the same reasons. Appeal dismissed. R. K. Sharma J. I agree.