NICHHALBHAI VALLABHAI Vs. JASWANTLAL ZINABHAI

JUDGEMENT

(1.) This appeal is brought on behalf of Defendants 1 to 6 and 24 to 39 against judgment of the High Court of Gujarat dated April 17, 1963 in First Appeal No. 215 of 1961 allowing an application for amendment of the plaint and remanding the suit for retrial before the Civil Judge (S. D.) at Surat.

(2.) The first respondent filed the suit "for partition of the Joint family properties" in the Court of the Civil Judge (S. D.) at Surat, being Special Suit No. 5 of 1957, against his grandfather, his father, his uncles and others. The plaintiff is the son of Defendant No. 14. Defendant No. 1 is the grandfather of the plaintiff and Defendants Nos. 2 and 3 are the brothers of defendant No. 1. Defendants Nos. 7, 18, 24 and 26 are the uncles of the plaintiff. The contesting defendants alleged that the plaintiff was not entitled to maintain the suit for partition of the joint family properties because he had not obtained the previous consent of his father- Defendant No. 14 who was joint with his own father-Defendant No. 1 and his brothers - Defendants Nos 7, 18, 24 and 26. The contention of the defendants was based upon the decision of the Full Bench of the Bombay High Court in Apaji vs. Ramachandra, (1892) ILR 16 Bom 29 (FB) in which it was held that according to the Mayukha law as applicable in Gujarat the plaintiff cannot maintain a suit for partition against the defendants in the absence of assent of his father. On July 28, 1959 the plaintiff made an application to the Trial Court for amending paragraph 3 of the plaint. It was alleged by the plaintiff that in paragraph 2 of the plaint , the words " vus Ns ('and have')" and in paragrahp 3 of the plaint the words "ve Nhv (i.e. 'and are')" had crept in through inadvertence and mistake and the words should, therefore, be allowed to be deleted. The plaintiff further stated that his claim in the suit was that there had already been a severance of status between the members of the joint family and the suit was merely for partition of the joint family properties by metes and bounds. The plaint is in Gujarati language and the official translation of paragraph 3 of the plaint is as follows:

(3.) The first question arising in this case is whether the High Court was right in taking the view that the suit brought by the plaintiff was merely a suit for partition by metes and bounds and not a suit for severance of the Joint family status. On behalf of the appellants Mr. Purshotam Trikumdas submitted that the High Court had not correctly interpreted the plaint. The learned Counsel referred to the sentence "We were and are members of the Joint and undivided family" of paragraph 3 of the plaint and said that this was a clear statement that the plaintiff had not effected severance of his status from the joint and undivided family. We do not think there is any justification for this argument. On the question of interpretation of the plaint it is important to consider all the averments made by the plaintiff in paragraph 3 together and the other connected paragraphs and it is not possible to draw an inference from any isolated sentence in the 3rd paragraph without regard to its context. In the same paragraph there is a clean allegation by the plaintiff that there was separation "of the three original branches and between the members of the branch of Nichhalbhai out of the original three branches". It is further alleged that "partition of goods and properties is not made separately and mutually between each branch or between the members of the branches according to the shares". It is evident from this sentence that the plaintiff has made a distinction between "separation of the three original branches and between members of the branch of Nichhalbhai" on the one hand and the "partition of goods and properties" on the other. This constitutes, therefore, a clear allegation of severance of status not only of the three branches but also of the members of the branch of the first defendant - Nichhalbhai. In that same paragraph the plaintiff goes on to say that the properties of the family should be separately distributed and that his share - 1 /105 - of movable and immovable properties should be separated and delivered to him. It is also important to notice that in paragraph 6 of the plaint the plaintiff has stated that the properties 'were and are held in common" and in paragraphs 8, 9, 10 and 12 of the plaint the word "distribution" is deliberately used. It is a well-known canon of interpretation that it is the duty of the Court not to confine itself to the force of a particular expression but to collect the intention from the whole instrument taken together. Having, therefore, regard to the statement of the plaintiff in all the paragraphs of the plaint and interpreting the plaint as a whole we are satisfied that the High Court was right in holding that the suit was not a suit brought for severance of joint family status but was a suit merely for partition by metes and bounds.