Skip to content


Umed Babar Vs. Khushalbhai Kevalbhai - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Judge
Reported in2Ind.Cas.426
AppellantUmed Babar
RespondentKhushalbhai Kevalbhai
Excerpt:
hindu law - relinquishment--partition--each member is presumed to represent not only himself but also his sons--general rule--exception. - - in the present case in exhibit 38 it is distinctly stated that the 2nd defendant's father received cash in lieu of his 1/8th share. but this point does not appear to have been made clearly in the first court......law though instead of receiving his share of the property as it existed then, the 2nd defendant's father received the money value of it. it is urged that, that partition is not binding on the 2nd defendant because the latter was a minor then and the deed, exhibit 38, contains no express words to show that his father and his co-parceners intended to include the 2nd defendant's share in his father's share. but the rule of hindu law is that at a partition among the members of a joint family, each member is presumed to represent not only himself, but also his sons and the son takes his share through his father as being included in the share allotted to his father. that is the meaning and result of the text: 'among sons by different fathers, the allotment of shares is according to the.....
Judgment:

1. What is called by the parties a relinquishment by the 2nd defendant's father was in substance a partition of the family property between him and his co-parceners, and it is none-the-less a partition within the meaning of that term in Hindu law though instead of receiving his share of the property as it existed then, the 2nd defendant's father received the money value of it. It is urged that, that partition is not binding on the 2nd defendant because the latter was a minor then and the deed, Exhibit 38, contains no express words to show that his father and his co-parceners intended to include the 2nd defendant's share in his father's share. But the rule of Hindu law is that at a partition among the members of a joint family, each member is presumed to represent not only himself, but also his sons and the son takes his share through his father as being included in the share allotted to his father. That is the meaning and result of the text: 'Among sons by different fathers, the allotment of shares is according to the fathers.' (Vyavahara Mayukha Mandlik's edition, page 44, lines 27 and 28). That is the general rule, but the parties to a partition may depart from it by allotting a share to a member of the family without including his son or sons in that allotment. In the present case in Exhibit 38 it is distinctly stated that the 2nd defendant's father received cash in lieu of his 1/8th share. That share, it is admitted, obviously included his son's (the 2nd defendant's) share. The partition was, therefore, binding on the 2nd defendant unless he Could show some legal ground for setting it aside; for instance, that it was the result of fraud or that what his father received in cash did not represent the fair value of his share. But this point does not appear to have been made clearly in the first Court. The Subordinate Judge no doubt refers to certain circumstances such as the inexperience and youth of the 2nd defendant's father at the time of partition, but it was not the case of the defendant in his written statement nor was the evidence directed to any such defence. It certainly was not made in the Court of appeal. Even here the ground urged before us was different. The decree must be, therefore, confirmed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //