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Vishnu Moreshwar Dabholkar Vs. Gangadhar Ganesh Dabholkar - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtMumbai
Decided On
Case NumberSecond Appeal No. 290 of 1921
Judge
Reported in(1922)24BOMLR302
AppellantVishnu Moreshwar Dabholkar
RespondentGangadhar Ganesh Dabholkar
Excerpt:
.....is bound to include all the claims he has at the time the suit is filed in respect of the suit property. he is not entitled to file another suit for accounts for a period prior to the partition, after a partition decree has been passed. - [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 appealable under the provisions of the act and if there is any violation in the exercise of the power,..........in that suit all the claims that they might have at the time the suit was filed in respect of the suit property. there is no precedent for the proposition that a party is entitled first to file a partition suit, and then when partition has been decreed, to file another suit in effect for accounts for a period prior to the partition. ln has been contended before us that the result of the proceedings in suit no. 2 of 19l2 was to change the nature of the plaintiffs' claim for their share in the profits for those three years, and that therefore there was an entirely new cause of action on which the plaintiffs could base the present suit, i cannot see any foundation for that argument because the plaintiffs' suit was dismissed in appeal. the fact that it was decreed in the lower court and the.....
Judgment:

Norman Macleod, C.J.

1. First Appeal No. 246 of 1918 was an appeal against the decision of the First Class Subordinate Judge at Ahmednagar in Suit No. 741 of 1916. The parties were the same as the parties in the present second appeal No. 290 of 1921 which is now before us. Suit Mo. 741 of 1916 was a suit by the plaintiffs against the present defendants to recover possession of their four annas share in the Jahagir village of Khedle, and I expressed a hope when I gave judgment that it was the last of a series of suits between the parties. I was not aware at that time that still yet another suit was pending being Suit No. 548 of 1919 from which the present appeal arises.

2. The plaintiffs in this suit, after judgment was given by the High Court on the 3rd February 1911 in S.A. 899 of 1908 declaring the shares of the parties of the Jahagir village, filed Suit No. 2 of 1912 claiming their share of the profits for the three years 1905-06, 1906-07 and 1907-08. They obtained a decree for Rs. 616-5-6 and interest in the lower Court and recovered that amount in execution. But eventually that decree was reversed by the High Court on the 26th August 1915 and the defendant got a refund of the amount that had been paid to the plaintiffs. The ground for that decision of the High Court, as I understand it, was that the property was joint and that the suit would not lie between the co-sharers of joint family property for a share of that property, the proper remedy being by a suit for partition. Accordingly the plaintiffs brought a partition Suit No. 741 of 1916 to which I have already referred and partition was decreed. But before that suit was finally disposed of they filed this suit on the strength of the decree obtained in the lower Court claiming exactly the same amount which they had claimed in the previous Suit No. 2 of 1912.

3. Both the lower Courts decided in favour of the plaintiffs, but it is difficult to understand the reasons for those decisions. When the suit for partition was filed, then the plaintiffs were bound to include in that suit all the claims that they might have at the time the suit was filed in respect of the suit property. There is no precedent for the proposition that a party is entitled first to file a partition suit, and then when partition has been decreed, to file another suit in effect for accounts for a period prior to the partition. ln has been contended before us that the result of the proceedings in Suit No. 2 of 19l2 was to change the nature of the plaintiffs' claim for their share in the profits for those three years, and that therefore there was an entirely new cause of action on which the plaintiffs could base the present suit, I cannot see any foundation for that argument because the plaintiffs' suit was dismissed in appeal. The fact that it was decreed in the lower Court and the plaintiffs actually obtained the money which was afterwards refunded makes no difference to the original cause of action, for the plaintiffs are not suing to recover what they had to refund in the previous suit but they are suing on the original cause of action on which the previous suit was based. Obviously if they wished to bring any claim for an account of the revenues of the suit village prior to the partition, they should have included it in the partition suit, and not having done so, they are clearly barred from claiming it in a later suit. The decision of the lower Courts is wrong and the suit is dismissed with costs throughout.

Coyajee, J.

4. I agree.


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