DHANJIBHAI KALIDAS Vs. MINOR CHETAN TRIKAMLAL

JUDGEMENT

(1.) xxx xxx xxx.

(2.) In this context it may be noted that although the plaint asserts that the vendor, i.e. the plaintiff's father had one-fourth share in the HUF property, the plaintiff has not, asked for any specific declaration that a particular share which the plaintiff had in the suit property be declared to have been saved or exclused from the sale in question. In other words, the plaintiff had merely sought for a declaration that the plaintiff's interest in the undivided share his father held in the HUF property would not be affected by and would be outside the scope and purview of the sale-deed in question, and that the sale would not, therefore, affect the interest of the plaintiff. To be more precise, the plaintiff has not asked for any declaration in respect of the quantification of his own interest in his vendor's share in the HUF property. Under the circumstances, it. was not necessary, and in fact going beyond the prayer made in the suit, for the trial court to quantify the share of the plaintiff, as it has done. The trial court has quantified the share of the plaintiff in the suit property as one-twelfth. This quantification, as aforesaid, is not merely unnecessary, but also is factually wrong.

(3.) The suit property, as held hereinabove, was the HUF property of Girdharlal. The sharers in such property would be the member of the HUF of Girdharlal on the date when actual partition is effected. Now Girdharlal left behind him his widow Kapilaben, three sons, viz. Jayantilal, Amratlal and Trikamlal, and two daughters, viz. Nirmalaben and Papilaben. Thus, as and when partition is effected in respect of the HUF property of Girdharlal, there would be six sharers, and thus, Trikamlal, the second defendant would have only one-sixth share. Therefore, the interest of the plaintiff, whatever it be, would be in respect of one-sixth of the HUF property as a whole. Moreover, the interest of the plaintiff in the aforesaid one-sixth share held by Trikamlal, cannot be determined on the date of the suit, inasmuch as it is quite possible that Trikamlal may perhaps beget a son or sons younger to the plaintiff; in other words, the plaintiff may yet hereinafter have younger brothers. Even otherwise there is evidence on record that the plaintiff does have two sisters by the name of Sonal and Rupal. Thus, when the share of Trikamlal is itself made the subject-matter of a partition, it is not merely the plaintiff and his mother who would obtain a share therein, but also the two sisters of the plaintiff. It is, therefore, obvious that since the plaintiff has not asked for any declaration as to the quantification of his share, the trial court was not justified in quantifying the same. Consequently, even if the same was necessary for any other purpose, the same cannot factually be justified as declared by the trial court. On the facts and circumstances of the case as discussed hereinabove, it is not possible to quantify the shares of the various sharers in the suit property, which belongs to the HUF of Girdharlal.