AHER HAMIR DUDA Vs. AHER DUDA ARJAN

JUDGEMENT

(1.) This Letters Patent Appeal by leave arises out of the judgment of the learned Single Judge dismissing the appeal preferred by the plaintiff against the judgment and decree of the District Judge reversing the judgment and preliminary decree passed for partition by the Civil Judge (Junior Division) Kutiyana. The short question that arises for determination in this appeal is whether the appellant (plaintiff) is entitled to bring an action for partition without the assent of his father under the Mitakshara law applicable to this State when the coparcenary consists of a paternal uncle and others.

(2.) The facts necessary for determination of the question involved are the following. The appellant his father and his uncle constitute a Hindu undivided joint family. The plaintiff filed the partition action averring that he is a member of the coparcenary and that he is entitled to a share in the coparcenary properties. According to him the properties are joint family properties and as such he is entitled to ask for partition of the properties by metes and bounds.

(3.) The action was resisted by the respondents i.e. his father and uncle and another on the ground that the appellants father had separated from the rest of the family during his fathers time and the action as brought by the appellant is not maintainable.