PATHAK HAYGRIV VISHWANATH Vs. PATHAK THAKORLAL MANILAL

JUDGEMENT

(1.) Now before we consider the points raised in this Court, it is essential to set out some of the undisputed or rather facts established in the case. One Bohgilal had three sons - Harilal, Maganlal and Manilal. Manilal is defendant No. 1 and he is the father of plaintiffs Nos. 1 to 4. Bhogilal died in the year 1941 and some time after his death partition of his properties was effected between his sons first in 1941 and then in November 1942 as would appear from Exs. 73 and 74 which are the certified copies of the extracts of the books of accounts produced by Maganlal. Ex. 65 who has filed the present suit as the next friend of the minor-plaintiffs. It appears therefrom that in partition Manilal got two houses - one of them being the suit house - and another house which is referred to in evidence as his shop. He also got various lands which have been set out in details in the deed Ex. 67 passed by defendant No. 1 on 21-6-1943, in favour of his son and his wife - who was then alive. He also got some ornaments as also the outstanding from the moneylending business which was being carried on by Bhogilal during his lifetime. This Manilal was previously in service as a Secretary of Padra Municipality from which he came to be dismissed and later on for some time he worked as a Stamp Vendor. Thereafter he started a new business in tea, ghee and other miscellaneous articles. In business he incurred some debts, and land even mortgaged his shop for the same. His brother Maganlal, however, felt that his brother Manilal was out to alienate his other family properties and that way acted against the interests of his minor sons. He therefore prevailed upon Manilal to pass a deed Ex. 67 on 216- 43. It is this deed which has to be considered and interpreted in order to determine the various questions raised before this Court. This deed was registered on 24-7-43. It is the case of the plaintiffs that by this deed, partition of the joint family properties, which Manilal had got in partition from his father's estate, was effected, and that on the suit house no right or interest of his had remained which he legitimately transfer to anyone thereafter. In case partition was not effected, there was severance of the joint family status between them, and that way, Manilal was not competent to alienate and bind their share in the ancestral family property. It need hardly be said, that if any of these points are established, as found by the learned Assistant Judge, Manilal had no authority by reason of their father acting as manager of the family to bind their shares in the property. That would be the first point to be determined. It was contended by Mr. Karlekar the learned advocate for the appellant that the learned Assistant Judge had ignored the observations made in the High Court of Bombay and has taken extraneous matters in to account, when in fact, those points had to be decided on the basis of the deed Ex. 67 in the case. There was, according to him, no ambiguity whatever, which would justify him to take into account oral and other irrelevant evidence in the case for construing the effect and nature of that document. His contention further is that the deed is neither a partition deed, nor one which creates severance of their joint family status and it merely is a deed of relinquishment of defendant No. 1's interest in the family lands referred to therein and no more.

(2.) Turning to the contents of the deed, the first part relates to the relinquishment of his right or interest in the lands referred to therein. After the deed was executed and attested, there is an endorsement there below whereby defendant No. 1 Manilal has stated that:

(3.) Taking the first point made out by Mr. Karlekar, it does appear true that the learned appellate Judge has ignored the observations made in the judgment in Second Appeal No. 1019 of 1955 by the High Court of Bombay, inasmuch as he has taken into account the other oral evidence and extraneous circumstances for interpreting the character and the effect of the deed. Ex. 67 in the case. Those observations made by His Lordship Justice Shah as he then was, were to the effect that: