NATHUBHAI VIRJIBHAI VACHHANI Vs. DAYALAL NATHUBHAI VACHHANI

JUDGEMENT

(1.) This is a defendants' appeal against the judgment and decree dated 10th August 1981 passed by the Civil Judge (Senior Division), Gondal, in Special Civil Suit No.73 of 1976 whereby the suit of the plaintiff (respondent herein) for partition and separate possession in respect of Survey Nos.12/5, 12/6 and 3/5 was dismissed, but it was declared in favour of the plaintiff that he had got 1/5th share in the Survey Nos.1098, 1099 and 1100 situated in the village Bhayavadar and that he is entitled to get the separate possession of his share from these lands and that for carrying out the partition and separate possession by metes and bounds, the copy of the decree be sent to the Collector, Rajkot to carry out the orders of the Court in terms of preliminary decree.

(2.) . The plaintiff is one of the three sons of defendant no.1 Nathubhai Virjibhai Vachhani. Virjibhai, i.e. grandfather of the plaintiff and father of Nathubhai had three sons in all, including defendant no.1 Nathubhai. Defendants nos.2 and 3 are the other two sons of Nathubhai. Puriben who was initially arrayed as defendant no.4 in the suit was the real mother of the present plaintiff and since she had already expired, Sakariben was arrayed as defendant no.4 being the stepmother of the plaintiff. Defendant no.5 Lilaben is the unmarried daughter of Nathubhai who was also minor at the time when the suit was filed. Thus the parties are the members of Hindu Joint Undivided Family and they have got ancestral properties situated in village Bhayavadar, which are the subject matter of the suit. The suit properties consisted of agricultural lands bearing Survey Nos.1098 admeasuring 35 gunthas; Survey No.1099 admeasuring 4 acres and 5 gunthas; Survey No.1100 admeasuring 4 acres 28 gunthas; Survey No.12/6 admeasuring 1 acre 4 gunthas; and Survey No.12/6 admeasuring 1 acre 5 gunthas. It was also alleged that the defendant no.1 has also inherited 16 gunthas of Survey no.3/6 in the partition of the properties amongst his brothers. All the defendants are in possession of the joint family properties. The plaintiff has claimed 1/4th share in the suit properties; defendants are managing the affairs of the suit properties and that they are bound to give the accounts in respect of the produce out of the suit properties. The plaintiff is not ready to continue as a member of the Hindu Undivided Family and therefore, he is entitled to get his share separated from the properties. He gave a notice dated 5.7.1978 to the defendants, but the notice was returned as refused. Therefore, the plaintiff filed the present suit for partition and separate possession of his 1/4th share in the suit properties. The written statement at Exh.21 was filed on behalf of the defendants nos.1, 2 and 4. It was pleaded that the suit was bad for non-joinder and mis-joinder of the parties as the plaintiff had not joined other sisters as parties to the suit inasmuch as his sisters Dayaben, Kantaben and Savitaben had not been joined and he had only joined Lilaben as party to the suit. It was also pleaded that the suit properties were not the ancestral properties and further that the plaintiff had been separated from the family about 16 to 17 years ago and at that time he had been given his share. It was also pleaded that he was residing in separate house in Bhayavadar and the plaintiff had also purchased the land from Thakershi Raghav out of the amount given to him as share. That the plaintiff had sold away that land and since seven years, he was residing at Rajkot. On these pleadings, the suit was sought to be dismissed with costs.

(3.) . On the basis of the pleadings of the parties, the trial Court framed the following issues: