SREENIVAS LAD Vs. EKANATH

JUDGEMENT

(1.) THIS is a plaintiffs appeal against the dismissal of his application under Order 40, Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'cpc' for brevity ).

(2.) THE facts are as follows.-The appellant's suit is for partition and possession of 1/8th share of the suit properties, for accounts and future profits, till the date of decree. It is the appellant's case that the suit properties are the selfacquired properties of late Vithal Rao Lad. The properties include extensive agricultural lands, buildings and a mining lease. Vithal Rao was married thrice. His first wife bore him one daughter, smt. Shoba, respondent 7 herein. On the death of his first wife, he married for the second time and had four sons by the second wife, namely, Uday Singh, who died in 1990 leaving behind respondents 11 to 15 as his legal heirs, Hiroji (respondent 2), Shivaji, who died in 1992, leaving behind respondents 16 to 18 as his legal heirs and Ekanath (respondent 1 ). When the second wife died, Vithal Rao is said to have married Huligamma, the mother of the appellant. According to the appellant, Vithal Rao had four sons and three daughters namely, the appellant, respondents 3, 4 and 5 and respondents 8, 9 and 10, through her. Vithal Rao died on 21-12-1970. At that point of time, the appellant and the other children of the third wife Huligamma were minors, except respondent 3. Therefore, the four sons of Vithal Rao by his second wife, assumed management of the properties and assets left behind by him. In the year 1963, Vithal Rao had started a firm along with his four major sons at that point of time in the name and style of "v. S. Lad and sons". Vithal Rao himself was managing the said business. He held many mining leases granted by the Government. These leases were not made part of the partnership property. The leases had remained in his name. However, on his death in 1970, the sons of Vithal Rao, namely, late Shivaji and late Uday Singh and respondents 1 and 2 came into the management of the properties. And they appear to have got the mining leases renewed in the name of the partnership firm "v. S. Lad and Sons". The appellant, his mother, his brothers and sisters continued to live jointly with his step-brothers and sister above named. They were all provided for and taken care of with the income of the family respondents 1 and 2, along with the two deceased step-brothers of the appellant, continued to manage the business of VS. Lad and Sons. The appellant was even admitted as a partner. However, on the death of shivaji, one of the partners, in a reconstitution of the firm, the appellant was left out. The appellant contends that recently it was discovered that late vithal Rao had left behind a registered Will dated 8-7-1965 whereunder he bequeathed all his properties including the mining leases held by him in favour of all his eight sons, including the appellant. As the appellant realised that the respondents 1 and 2 are gradually seeking to exclude the appellant as well his natural brothers and sisters from the benefits of the income from the family business and were indicating that they claim the properties and assets as their exclusive property - the appellant had chosen to institute the suit. Respondents 1 and 2 and the legal heirs of the deceased step-brothers of the appellant have resisted the suit claim. It is denied that the appellant is the son of a legally wedded wife of late Vithal Rao. His mother is alleged to be a "lesi" or the kept mistress of late Vithal Rao. It is denied that the appellant was admitted as a partner of V. S. Lad and sons or that he and his family had the benefit of the income of the family. Though the mining leases did stand in the name of Vithal Rao, over a period of time, the same were renewed in the name of the firm and are held by the firm. That the appellant is seeking to raise a false claim. That by virtue of his mother being the exclusive kept mistress of late Vithal Rao - several items of property had been settled in her favour. That the appellant, his brothers and sisters and their mother had sold those properties as early as 1976 and migrated to Bangalore. And, as the business of V. S. Lad and Sons was low-key and indifferent, till the year 1984, question of paying any benefits to the appellant did not arise. It is since recently that V. S. Lad and Sons has prospered and is making profits consistently and this has prompted the appellant to set up a speculative claim. He, his mother, brothers and sisters have no manner of right over the suit properties.

(3.) IT is in this background that the appellant had filed an application under Order 40, Rule 1 of the Code of Civil Procedure, 1908 seeking the appointment of a receiver in respect of the mining leases held in the name of respondent 19 as well as other businesses. This application is filed subsequent to the filing of the pleadings of the contesting respondents and the affidavit in support of the same is hence couched in a fashion to forestall the denial of his right to any such relief and it is contended that the contesting respondents have admitted that the appellant is, the son of late Vithal Rao, though alleged to be an illegitimate son of a kept mistress. That documents are produced to indicate respondents 1 and 2 have acted as guardians for the appellant and his brothers and sisters during their minority and their schooling. That the contesting respondents do not deny the Will of late Vithal Rao.