1. This is plaintiff's appeal from the decree in civil suit No. 5-A of 1948 of the Court of First Additional District Judge, Sagar, dismissing his claim for partition.
2. The following pedigree discloses the relationship between the parties.
BALLE (d. before 1888)
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Mulchand Sukkelal Nanhelal Ramkishan Bhaiyalal
(d. 1891) (d. 17-4-1915) (d. after 1888) (d. 1906) (d. 31-1-1946)
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_______|__________ ___________|__________ Damrulal |
| | | | | _________________|________
Tantilal Manmohan Sandhani Ranjit Babulal | |
(deft. 1) (d. 1932)
| | | | Mulamchand
Komalchand Shikharchand Prakashchand Subhashchand (Plaintiff)
(deft. 2) (deft. 3) (deft. 4) (deft. 5)
It was not disputed in the pleadings that Balle and his sons formed a joint Hindu family from which Nanhulal separated in 1888 A.D., Tantilal Manmohan and Sandhani, in 1908 A.D. and Damrulal In 1939 A.D. It was also not disputed that the plaintiff was born on 26th September, 1929 and attained majority on 26th September, 1947. The suit was instituted on 8th May, 1948 within 3 years of his attaining majority.
3. The case of the plaintiff was that Balle left behind considerable property which devolved on his sons on his death. The family continued joint in spite of the separation or Nanhulal and sons of Mulchand, namely Tantilal, Manmohan and Sandhani. After the death of Sukhalal in 1915, the family consisted of Damrulal and Bhaiyalal. On Damrulal's separation in 1939 A.D., Bhaiyalal continued joint with his son Kanchhedilal, defendant No. 1, and his grandson, the plaintiff. On the death of Bhaiyalal, the plaintiff demanded partition from Kanchhedilal by a notice, dated 27-10-1947.
In reply to this notice, Kanchhedilal alleged that there was already a partition between him and the plaintiff on 21st January, 1946. The plaintiff contended that the alleged partition was not binding upon him firstly because it was not effected by his guardian, namely mother Mst. Maharani, and secondly because Bhaiyalal had lost his power of understanding on account of senile decay. He, therefore, claimed partition of the entire property in the hands of Kanchhedilal and his sons.
4. The defendants alleged that Balle did not own any property except a small house which yielded no income and could not form a nucleus for acquisition. According to them, the property was acquired by the sons of Balle by their own exertions. Their case was that there was a family partition between the sons of Balle on 15th June, 1914, and thereafter Sukkelal bequeathed his share of the property to defendant No. 1, Kanchhedilal, by a will, dated 15th April, 1915.
In this property Damrulal claimed no interest when he separated from Bhaiyalal in the year 1939. This property was all along treated as the separate property of Kanchhedilal by all concerned and accordingly it was left out of the partition between him and the plaintiff, which was effected with the concurrence of the plaintiff's mother as his guardian. Accordingly, on 21st January, 1946, Bhaiyalal executed, on behalf of himself and the plaintiff a Farkatnama in favour of Kanchhedilal and also a deed of partition between him and the plaintiff.
The defendants contended that the partition was binding upon the plaintiff and in any case the suit could not be maintained in the absence of a prayer for cancellation of the Farkatnama and the deed of partition. Alternatively, they urged that in the property of Sukkelal, the plaintiff could not have any snare exceeding 1/6th.
5. The lower Court by an order dated 30th June, 1949, held that there was no ouster of the plaintiff to his knowledge and, therefore, he was not required to pay ad valorem court-fees. On other issues, its findings may be summarised as below :--
(1) That there was a family partition in the year 1888 A.D., but there was a reunion of Mulchand, Sukkelal, Ranikishen and Bhaiyalal;
(2) That the reunion was followed by separation of Tantilal, Manmohan and Sandhani in the year 1908, and of other members of the family in the year 1914;
(3) That the members of the family after the partition of 1914 held the property as tenants-in common and as such Sukkelal was competent to bequeath his share of the property to Kanchhedilal, which formed his separate property and was treated as such by the whole family;
(4) That the property bequeathed by Sukkelal was blended with the joint family property after the separation of Damrulal, and on this ground, the plaintiff was entitled to a share in it; and
(5) That the partition was effected by Bhaiyalal on 21-1-1946 between Kanchhedilal and the plaintiff but as it was unfair to the plaintiff, it was liable to be vacated. The lower Court, however, dismissed the suit, as in its view, it was not maintainable in the absence of a relief by the plaintiff for cancellation of the Farkatnama and the deed of partition.
6. The plaintiff made an application on 6th September, 1949, which was directed to be heard along with the appeal. He maintained the stand that it was not necessary for him to sue for cancellation of the Farkatnama and the deed of partition but prayed that if the Court holds otherwise, he should be allowed to claim that relief and if necessary to pay the necessary court-fees. Subsequently he filed another application on 17th January, 1957 for leave to raise additional pleas claiming repartition of the remaining property if it was held that the property bequeathed by Sukkelal to defendant No. 1, Kanchhedilal, was not liable to be partitioned. These applications are opposed by the defendants.
7. So far as the application, dated 17th January, 1957, is concerned, we have no hesitation in rejecting it. Having chosen to limit the attack on the partition to the ground mentioned in the plaint the plaintiff cannot now be permitted to widen their scope. The application is, therefore, rejected. The other application is associated with the matters in controversy.
8. We are clearly of the opinion that the lower Court was not justified in going beyond the case set up by the parties for trial. The evidence, and the findings thereon, which fall outside the scope of the pleadings shall, therefore, be ignored: Siddik Mohammed Shah v. Mt. Saran, AIR 1930 PC 57 (1) (A). We shall accordingly limit the case to the position that in 1888 A.D. only Nanhelal had separated from the family and the remaining members had remained joint. It is immaterial whether this jointness was brought about by reunion, as found by the lower Court. In fact, it was not necessary to consider whether the partition of 1888 A.D. was complete as to the property and the members of the family, when this was not the case of any party. Similarly, in 1908, A.D. the sons of Mulchand and subsequently in 1939 A.D., Damrulal, had separated from the family according to both the parties.
9. This brings us to the question of the partition of 1914 A.D. The learned Judge of the lower Court has relied upon Ex. D-28 on this point. This document is a bahi maintained by the family. It contains recitals of the partition of Sambat 1985 (1908 A.D.), which are not material. What we are concerned with are the recitals of Sambat 1971 (1914 A. D.) in which there is an entry, dated l5th June 1914, evidencing receipt of their share of the property by Sukke, Bhaiyalal, Damrulal, and Tantilal, Manmohan and Sandhani. The entry, however, purports to be signed only by Bhaiyalal, Tantilal and Damrulal, and not by others. Damrulal had admittedly remained joint until 1939 A.D. and Tantilal, Manmohan and Sandhani had already separated in 1908 A.D. Also Sukke had not put his signature on the entry. These facts militate against the story of the partition. It is also to be noted in this connection that the defendants had not pleaded this partition in the beginning and had raised the plea after all the witnesses except Moujilal (D. W. 3) were examined. His evidence, however, belies the contention that the family had separated in the year in question. In his will, Ex. D-35, which was executed on 15th April, 1915, after the alleged partition, Sukke had admitted his jointness with Bhaiyalal and Damrulal in residence and business. Regarding property, he did not claim it on the basis of any partition but on an allegation of self acquisition. In these circumstances, the learned Judge of the lower Court was not justified in drawing an inference of a genuine and completed partition from the entry in Ex. D-28.
10. The question then is whether Sukke should be deemed to have expressed an intention in his will to separate from the family. It is settled law that there must be a definite and unequivocal indication of his intention by a member of joint family to separate himself before the joint status of the family can be deemed to be divided : Girja Bai v. Sadashiv, 43 Ind App 151 : (AIR 1916 PC 104) (B), Balkrishna v. Ram Krishna, 58 Ind App 220 : (AIR 1931 PC 154) (C), This is not, therefore, a matter of mere inference. Thus in Shivappa Rudrappa v. Rudrava Chanbasappa, ILR 57 Bom 1 : (AIR 1932 Bom 410) (D), an oral request by an elder brother to his younger brother at the time of his death to give half the property to his widow was not held to amount to a separation. In the present case all that was stated by Sukkelal in the will was that he was entitled to -/5/4 share in the entire property. Such statement is also made by any member of a joint family during the state if jointness and even separate shares are entered in the village records, but that, by itself, does not necessarily indicate, an intention to separate from the family. We are not, therefore, inclined to accept that the will can be held to effect a separation of Sukkelal from the joint family.
11. The joint nature of the property does not appear to be a matter open to dispute. Even if the bulk of the property was acquired by the sons of Balle by their own exertions as alleged by the defendants, they had evidently blended it with the estate left by their father, though it was small. This is clear from the fact that the members of the family had themselves treated it as joint family property from which they took share from time to time whenever they separated themselves from the family. Sukkelal had, therefore, no right to dispose of his joint interest by will.
12. Where a portion of the joint property has been excluded from partition, whatever the reason, it continues to be the joint property of the family and it must be divided amongst the persons who took under the partition: Jogendra Nath Roy v. Baladeb Das Marwari, 12 Cal WN 127 (E), Bhowani Proshad Shahu v. Jaggernath Shahu, 13 Cal WN 309 at P. 316 (F), Lachman Singh v. Sanwal Singh, ILR 1 All 543 (G), Ganeshi Lal v. Babu Lal, ILR 40 All 374: (AIR 1918 All 223) (H). The plaintiff's right to partition the property which was allotted to defendant No. 1, Kanchhedilal, on the basis of Sukkelal's will, cannot, therefore, be disputed.
The question is whether he should be allowed to reopen the entire partition, or only to partition the excluded property. Plaintiff has denied not only the validity but also the factum of the partition. The partition is evidenced by a deed, Ex. D-32, which was executed by Bhaiyalal for self and as guardian of the plaintiff. As a grandfather, however, he was not his legal guardian. The deed, therefore, does not bind the plaintiff. Similar is the case with Farkatnama (Ex. D-31).
Besides these deeds there is no other definite evidence of the property allotted to the parties. The allotment of the alleged property of Sukke to defendant No. 1 clearly amounts to fraud which entitles the plaintiff to reopen the partition; Moro Vishwanath v. Ganesh Vithal, 10 Bom HCR 444 at p. 451 (I); Lakshman v. Gopal, ILR 23 Bom 385 (J). In view of the inequitable nature of the partition due to the impact of fraud, we are of the opinion that the plaintiff should be allowed to reopen the entire partition.
13. The question then is whether it is necessary for the plaintiff to pray for cancellation of the Farkatnama and the deed for partition. There is no doubt that a father has under the Hindu Law an absolute right to divide the family property at any moment during his life, and if he does so, the effect in law is not only a separation of the father from the sons, but a separation of the sons inter se. The consent of the sons is not necessary for the exorcise of this power : Kandasami v. Doraisami Ayyar, ILR 2 Mad 317 at p. 321 (K); Nirman Bahadur v. Fateh Bahadur, ILR 52 All 178 : (AIR 1929 All 963) (L).
He has, however, no power, to bring about a separation among the grandsons, and even if he allots them shares, they remain joint : Subbarami Reddi v. Chenchuraghava Reddi, ILR ) 945 Mad 714 : (AIR 1945 Mad 327) (M). The question however, relating to the division of the property amongst the grandsons inter se does not arise in the present case. As the right of the father to effect a partition between himself and his sons is absolute, it cannot be defeated merely because the partition would also result in allotment of property to a grandson; Aiyavier v. Subramania Iyer. AIR 1918 Mad 395 (N).
However, this does not mean that he can act as the guardian of a minor grandson and execute documents on his behalf so as to bind his interests. Where the documents do not bind a party, it is obviously not necessary for him to sue for their cancellation, for that would be a redundant relief. In Moro Vishwanath v. Ganesh Vithal (I) (supra), where a plaintiff sued for partition alleging that the deed of partition taken by the defendant during his minority was a colourable transaction, it was held that a relief of declaration with or without a consequential relief could not be imported into the plaint.
In Chanvirapa v. Danava, ILR 19 Bom 593 (O), Balkrishan Das v. Ram Narain Sahu, ILR 30 Cal 738 (P), and Pooran Chand v. Radha Raman, AIR 1943 All 197 (Q), which are relied upon by the learned Judge of the lower Court, the documents were binding on the plaintiffs. They do not, therefore, apply to the present case. We accordingly hold that the plaintiff need not claim a relief for cancellation of the Farkatnama and the deed of partition.
14. The question of court-fees was already disposed of by the lower Court as already stated. That question was not re-agitated before us. The finding of the lower Court that Bhaiyalal was in possession of full understanding when he effected the partition was also not questioned by the plaintiff, nor did the defendants urge that the partition was effected with the consent of the plaintiff's mother as was pleaded. These questions do not arise when the partition has been found to be vitiated by fraud.
15. In view of the findings above, the appeal is allowed. As a consequence the decree of the lower Court dismissing the suit with costs is set aside and it is ordered that in its place a preliminary decree for partition shall be passed, declaring that the plaintiff is entitled to half share in the joint family property and directing that the said property be partitioned and the plaintiff be placed in separate possession of his share.
The revenue paying estate shall be partitionedthrough the Collector, and the rest of the propertythrough a Commissioner to be appointed by thelower Court. Costs of the suit and of the appealshall be borne by the defendants.