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Narayan Ramachandra Katkar and ors. Vs. Arjun Bhimrao Gore and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 701 of 1980
Judge
Reported inAIR1985Bom122; 1985(2)BomCR247; (1985)87BOMLR680
ActsHindu Law; Limitation Act - Sections 7
AppellantNarayan Ramachandra Katkar and ors.
RespondentArjun Bhimrao Gore and ors.
Appellant AdvocateK.Y. Mandlik, Adv.
Respondent AdvocateBhimrao N. Naik, Adv.
Excerpt:
.....7 of the limitation act, 1963 would apply only to a case where one of the several persons jointly entitled to institute a suit is under any such disability and a discharge cannot be given without the concurrence of such person. each of the sons who is coparcener of a joint family is entitled to question alienations made by the father, has an independent right of his own; it is not a joint right of all the sons which cannot be enforced unless all of them join so that the minority of one sun could enlarge the period of limitation. - [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a summary nature and does not conclude the rights of the petitioners, because while passing the assessment order, it is always open to the petitioners to..........the alienation s. 7, limitation act, would apply only to a case where one of the several persons jointly entitled to institute a suit is under any such disability and a discharge cannot be given without the concurrence of such person. each of the sons who is coparcener of a joint family is entitled to question alienations made by the father, has an independent right of his own; it is not a joint right of all the sons which cannot be enforced unless all of them join so that the minority of one son could enlarge the period of limitation. the major sons being entitled to question alienations not having filed the suit within 3 years of the alienations, their claim was barred by limitation. it is not in dispute that plaintiffs 1 and 4 were both major and hence their suit claim in respect of.....
Judgment:

1. This second appeal arises out of a suit for partition filed by the sons of defendant 1 and their mother, challenging the alienation made by defendant 1. These alienations are challenged on the ground that there was no legal necessity and that they were for immoral purposes. The alienation was effected in favour of defendant 5 on 24-6-1953, in favour of defendant 4 on 11-5-1955, in favour of defendant 7 on 4-6-1955, in favour of defendant 3 on 12-9-1960. The suit was filed on 6-2-1972 and by the date, both plaintiffs 1 and 4 had attained majority more than 3 years prior to the institution of the suit. The 2nd plaintiff however, had attained majority within two years of the institution of the suit while plaintiff 3 was still a minor. The defendants pleaded that the alienations where fore legal necessity and where not for immoral purposes and that they were for the benefit of the family.

2. The trial Court held that the alienations were not proved to be for immoral purpose and dismissed the suit. On appeal, the appellate Court held that so far as the alienation Dt. 12-9-1960 in favour of defendant 3 is concerned. it was for legal necessity, but is respect of the other alienations in favour of defendants 4,5 and 7, they were held to be not supported by legal necessity. The suit was decreed and plaintiffs 1,2 and 4 were declared entitled to a 4/15th share in the suit lands. The Court was however, of the view that the degree for partition could not be granted inasmuch as the father of the plaintiffs continued to be joint with his brothers and was not willing for a partion. In the result, the Court declared that plaintiffs 1,2 and 4 were entitled to joint possession of the suit lands with defendants 3, 5, 6 and 7 in respect of their 4/15th share.

3. Although Shri Mandlik, learned counsel for the appellants sought to contend that the alienations in favour of defendants 5,6 and 7 are also supported by legal necessity, that being a question of fact and the finding of the appellate Court being supported by the evidence, the correctness of that finding cannot be allowed to be canvassed in second appeal; those findings are binding on the Court. He next contended that the suit was filed far more than three years after the alienations and at least in the case of plaintiffs 1 and 4, who were both minors (sic) on the date of the alienations, the suit was barred by time at least so far as their shares are concerned. This contention must be upheld. The appellate Court, in my opinion, misdirected itself in applying S. 7, Limitation act. No. doubt, one of the sons of the aileron was a minor on the date of the suit, but his minority cannot bin any way benefit the plaintiffs who were major even on the date of the alienation S. 7, Limitation Act, would apply only to a case where one of the several persons jointly entitled to institute a suit is under any such disability and a discharge cannot be given without the concurrence of such person. Each of the sons who is coparcener of a joint family is entitled to question alienations made by the father, has an independent right of his own; it is not a joint right of all the sons which cannot be enforced unless all of them join so that the minority of one son could enlarge the period of limitation. The major sons being entitled to question alienations not having filed the suit within 3 years of the alienations, their claim was barred by limitation. It is not in dispute that plaintiffs 1 and 4 were both major and hence their suit claim in respect of their share is barred by time. Only the claim of plaintiffs 2 and 3 survived for considerations. So far as plaintiff 3 is concerned, admittedly, he was minor and plaintiff 2 had attained majority within 3 years of the institution of the suit. Their suit is, therefore, maintainable on the ground that the alienations were trained by immorality and were also not for legal necessity. Each of them has 1/8/15th share in the suit property. According to the lower Court, they are only entitled to joint possession. The Court refused to grant a decree for partition and separate possession having regard to the Full Bench judgment of this Court in Apaji Narhar Kulkarni v. R. Ravji Kulkarni, ILR (1892) Bom 29. But subsequently, the Supreme Court in Puttorangamma v. Rangamma : [1968]3SCR119 has laid down:-

'(4) It is now a settled doctrine of Hindu Law that a member of a joint Hindu family can bring about his separation in status by a defininte, unequivocal and unilateral declaration of his intention to separate himself from the family and enjoy his share in severalty. It is not necessary that there should be an agreement between all the coparceners for the distribution of the joint status. It is immaterial in such a case whether the other coparceners give their assent to the separation or not. The jural basis of this doctrine has been expounded by the early writers of Hindu Law................................And thus though the mother is having her menstrual courses (has not lost the capacity to bear children) and the father has attachment and does not desire a partition, yet by the will (or desire) of the son a partition of the grandfather's wealth does take place. ...........................Here too there is no distinction between a partition during the life-time of the father or after his death and partition at the desire of the sons may take place or even by the desire (or at the will) of a single (coparcener).'

In view of this above decision of the Supreme Court, the Full Bench Judgment of this Court to the contrary can no longer be deemed as good law and binding on this Court. A suit for partition and separate possession of ancestral joint family properties by one of the coparceners is maintainable even if their father is joint with his brother and is not willing and does not consent to such a partition. There can be impedement (sic) to grant a decree for partition and separate possession to each of the plaintiffs 2 and 3 who are declared to be entitled to 1/15th share. Since the decree for partition at the instance of the sons is being passed, plaintiff 4 who is their mother is also entitled to a 1/15th share. There is no reason why she should be deprived of her share. On the death of plaintiff 3, his mother, plaintiff 4, was brought on record as his legal heir. She is thus entitled to 2/15th share - 1/15th of her own and 1/15th share as a legal representative of plaintiff 3 since deceased. In the result, the suit of the plaintiffs for partition and separate possession deserves to be decreed to the extent of 3/15th share in the properties by declaring that the alienations to the extent of their shares are not valid and binding on them. The decree of the lower appellate Court is modified accordingly. This second appeal is allowed in part of the extent above. There shall be a decree for partition and separate possession of 3/15th share in favour of plaintiffs 2 and 4. In the circumstances of the case, there will be no order as to costs. Order accordingly.


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