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Trimbak Ganesh Karmarkar Vs. Pandurang Gharojee Shetye - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 958 of 1918
Judge
Reported in(1920)22BOMLR812; 57Ind.Cas.582
AppellantTrimbak Ganesh Karmarkar
RespondentPandurang Gharojee Shetye
Excerpt:
hindu law-partition-sale of an undivided share in joint family property-purchaser can sue for partition, but cannot recover past profits.;the purchaser from a hindu co-parcener of his undivided share in joint family property is entitled to recover the share by partition; but he is not entitled to recover past profits before the date of the suit. - [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 point out that the assets recovered in the search were not undisclosed to point out that the assetsrecovered in the search were not undisclosed income. secondly, the order passed under s. 132(5) is..........plaintiff that he stands exactly in the shoes of his vendor, and that if he is excluded from the joint family property he is entitled in a suit for partition to ask for a share in the mesne profits before the suit. it may be that in a suit between coparceners for partition, if any members of the coparcenership prove that they had been excluded from the family property in a partition suit they might get a decree for past mesne profits. as stated by mr. justice melvill in konerrav v. gurrav ilr (1881) 5 bom. 589:where one member of the family has been entirely excluded from the enjoyment of the property, there might be good grounds for ordering an account: but in the ordinary case of joint enjoyment by the members of the whole property, or of enjoyment by different members of different.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff sued to recover his two-fifth share in the plaint property by partition with three years' profits Rs. 240 plus Rs. 80 for damages on account of trees cut down by the defendants. There were five brothers two of whom Mahadev and Ramehandra sold their shares to the plaintiff on the 30th April 1914 and 10th February 1917 respectively. The trial Court ordered that the plaintiff should recover two-fifth share by a fair and equitable partition and by metes and bounds, as well as Rs. 63 for past profits and at Rs. 42 per year since 1917 till delivery of possession by partition: besides Rs. 60 for damages. An appeal from this order was summarily dismissed.

2. The 1st and 2nd defendants have appealed and have confined . their objections to that part of the order which directs thorn to pay Rs. 63 as past profits to the plaintiff. It is contended for the plaintiff that he stands exactly in the shoes of his Vendor, and that if he is excluded from the joint family property he is entitled in a suit for partition to ask for a share in the mesne profits before the suit. It may be that in a suit between coparceners for partition, if any members of the coparcenership prove that they had been excluded from the family property in a partition suit they might get a decree for past mesne profits. As stated by Mr. Justice Melvill in Konerrav v. Gurrav ILR (1881) 5 Bom. 589:

Where one member of the family has been entirely excluded from the enjoyment of the property, there might be good grounds for ordering an account: but in the ordinary case of joint enjoyment by the members of the whole property, or of enjoyment by different members of different portions of the property, the taking of an account would he most different and unsatisfactory, and we are not aware of any case in which the Courts have over ordered it.

3. But a purchaser from a member of an undivided family is in a different position. The other coparceners are not bound to recognise him in any way, and he could only exert his rights against them under his sale deed from their coparcener by filing a suit for partition. I do not think it has been over held that any member of a Hindu joint family is entitled to bring in a stranger into the family and insist upon the other coparceners treating him as a member of the family. But as unfortunately the Courts have recognised the rights of a member of a joint family to sell his share, then the purchaser is entitled to get his share by partition. But it is certainly not desirable that his rights should be extended in any way further as if by his purchase he stood for all purposes exactly in the shoes of his vendor. Therefore the decree of the trial Court must be amended by striking out that portion which allows Rs. 63 for past profits. The appellant will get his costs in proportion to his success. The rest of the appeal is dismissed with costs. Cross-objections dismissed with costs.


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