MANIBEN Vs. RAMIBEN

JUDGEMENT

(1.) This appeal under section 100 of CP Code arises of the judgment and order dated 18th April, 1994, passed by the learned District Judge, Valsad, in Regular Civil Appeal No. 26/93, arising of the judgment and order dated 17th December, 1991, passed by the learned Civil Judge (JD) Gandevi, in Regular Civil Suit No. 130/85. The appellants before this court are the plaintiffs. The respondents nos. 9 and 10/1 have, pending this appeal, died on 24th November, 1997 and 6th December, 1996, respectively. The heirs and legal representatives of the said respondents have not been brought on the record. The appeal against the said respondents has abated. The respondent no. 10/2 had died on 4th June, 1986 pending the suit and his heirs and legal representatives also have not been brought on the records of the matter. The suit against the said respondent-defendant had thus abated.

(2.) The plaintiffs and the defendants are the descedants of one common ancestor one Kalabhai Patel. The plaintiff no.1 is the daughter of Bhagubhai Kalabhai and the grand-daughter of said Kalabhai Patel. The plaintiff no. 2 is the daughter of Jivanbhai Kalabhai Patel and the grand-daughter of the said Kalabhai Patel. The plaintiffs claim that the properties referred to in the plaint were the joint family properties of the said common ancestor Kalabhai Patel. Bhagubhai Kalabhai and Jivanbhai Kalabhai the sons of the said Kalabhai Patel had died in the years 1982 and 1979 respectively. The plaintiffs further say that they belong to Hindu Dhodiya community and they are governed by the Hindu Succession Act, 1956 (hereinafter referred to as 'the Act of 1956'). Before that, they were governed by the Hindu Act and by the custom and usage prevalent in their community. The plaintiff no.1 had 1/10th share and the plaintiff no. 2 had 1/12th share in the joint family property. The plaintiffs, therefore, prayed for partition in the suit property by metes and bounds; for possession of their share in the suit property; and for rendition of accounts of the part of the suit properties given on rent. The suit was contested by the defendants nos. 3 and 9 by filing written statement at Ex. 40. The defendants nos. 17 and 18 and 10/1 to 10/6 adopted the written statement Ex.40 by filing written statements at Exs. 41 and 42 respectively. The averments made in the plaint were specifically denied. It was asserted that the plaintiffs and the defendants belong to Hindu Dhodiya community which was declared to be a Scheduled Tribe. The Act of 1856 therefore, was not applicable. The plaintiffs being daughters can not claim share in the joint family property. The defendants nos. 3, 9 and 10 made an application at Ex. 58, and prayed for a decision on the preliminary issues - (a) whether the plaintiffs are barred from obtaining the partition of ancestral property as they belong to Dhodiya caste as per provisions of the Hindu Succession Act; and (b) whether this court has jurisdiction to try the suit which comprises of the property governed by section 73-AA of the Land Revenue Code. The said application was partly allowed by order dated 12th December, 1990. The suit was directed to be heard on preliminary issue whether the plaintiffs being of Hindu Dhodiya community were barred from claiming reliefs under the Act of 1956. The suit was accordingly heard on the aforesaid preliminary issue. The learned trial Judge held that the community of the plaintiffs was declared to be a Scheduled Tribe and in view of sub-section (2) of section 2 of the Act of 1956, the said Act did not apply to the plaintiffs. It was further held that even after the enactment of the Act of 1956, the plaintiffs continued to be governed by the Hindu Nibandh, 1937 (hereinafter referred to as 'the Nibandh'), prevalent in the erstwhile State of Baroda. It was held that under the Nibandh, the daughters were excluded from the properties of the joint family. The plaintiffs, therefore, could not have claimed a share in the suit properties. The learned trial Judge accordingly dismissed the suit by his judgment and order dated 17th December, 1991. Feeling aggrieved, the plaintiffs preferred Regular Civil Appeal No. 26/93. The same also was dismissed by the learned District Judge, Valsad, on 18th April, 1994. Feeling aggrieved, the plaintiffs have preferred the present appeal.

(3.) Ms. Brahmbhatt has contended that both the courts below have grossly erred in dismissing the suit on preliminary issue alone. It was the duty of the trial court to frame the issues based on the pleadings and to decide all the issues on merits. She has also contended that both the courts below have grossly erred in proceeding on the basis that the plaintiffs were daughters of the deceased Bhagubhai Kalabhai and Jivanbhai Kalabhai respectively. Infact, the plaintiff no. 2 is the widow of the deceased Jivanbhai Kalabhai and was entitled to a share in the Hindu joint family property even under the Nibandh. She has further contended that the plaintiffs had also claimed that the plaintiffs had a share in the Hindu joint family property according to the custom and usage prevailing in their community. The custom and usage could not have been proved unless proper issue were framed and the plaintiffs were allowed to lead evidence. The court, therefore, has erred in not framing the issue as regards the custom and usage prevailing in their community and in not permitting the plaintiffs to lead evidence to establish such custom and usage. In support of her arguments, she has relied upon the judgments of this court in the matters of GUJARAT HOUSING BOARD VARODA VS NAVNIRMAN MAZDOOR BANDHKAM SAHKARI MANDLI LTD (1992 {1} GLR 155), and of STATE OF GUJARAT VS M/S JAIPALSINGH JASWANTSINGH ENGINEERS & CONTRACTORS CHANDIGARH (1994 {1} GLR 258, and of Patna High Court in the matter of GOPAL SINGH BHUMIJ VS GIRIBALA BHUMIJ (AIR 1991 PATNA 138)