PRAJARAM VITHALJI SHETH Vs. MAGANLAL VITHALJI SHETH

JUDGEMENT

(1.) This First Appeal is from a preliminary decree passed on 31st December 1960 by the Civil Judge Senior Division Gondal in a suit for partition Special Civil Suit No. 8/59 (old number 47/53) filed by one brother against his brothers and others. The plaintiff Maganlal Vithalji who filed the suit is the youngest of the brothers. He is now respondent No. 1 to this appeal. Defendant No. 1 to the suit Prajaram Vithalji is the eldest of the brothers and defendant No. 2 Bai Labhkunvar is his wife. They are the appellants in this appeal. The defendant No. 3 Chandrakant Prajaram was the son of defendant No. 1. He is respondent No. 2 to this appeal and is more or less a formal party. Defendants Nos. 4 and 5 (Originally defendants 8 and 9 respectively) Trikamlal Vithalji and Chhaganlal Vithalji were the other brothers next to defendant No. 1 in seniority. They are the other respondents to this appeal. Trikamlal having died pending the suit his heirs have been brought on record. The suit as just mentioned was one for partition on the footing that the four brothers formed a joint Hindu family. The suit was filed on 19th October 1953. The properties alleged to be belonging to the joint family on that date are according to the plaint (i) ancestral house at Gondal (ii) the business in paper at Rajkot (iii) two houses at Rajkot one acquired in 1943 and the other in 1951 in the name of defendant No. 2 (appellant No. 2) (iv) one house at Ahmedabad acquired in 1951 also in the name of defendant No. 2 (v) moveable not specified in the plaint. The only contesting defendants were defendants Nos. 1 and 2 who are the appellants here. Their contention was that there was no joint family and that item No. (ii) above mentioned was the exclusive property of defendant No. 1 that items Nos. (iii) and (iv) were the exclusive property of defendant No. 2 and that there was no moveable property of the joint family in their possession as whatever was in their possession was their own. There were other contentions to be presently mentioned particularly the contention of severance of joint status and adverse possession. The case of defendant No. 1 was negatived and the learned trial Judge held that the family continued to be joint and the property in the suit was joint family property and passed a preliminary decree awarding to each of the brothers 1/4th of the property both moveable and immoveable to be duly partitioned through a Commissioner. Against that decree defendants Nos. 1 and 2 have come in appeal.

(2.) The relationship of parties has been already indicated. Some of the broad facts relating to the family which are not in dispute may be first stated. The four brothers who are parties to the suit are the sons of one Vithalji Jaichand of Gondal. Vithalji was the Mahalkari in the Gondal State and he admittedly died in 1922. He left behind him five sons and three daughters. In order of seniority the five sons were Prajaram Vithalji (defendant No. 1) Trikamlal (defendant No. 4) Chhaganlal (defendant No. 5) Umedmal who died in 1930 and Maganlal (the plaintiff). The three daughters were Dahiben Kashiben and Shantaben all now married. At the time of Vithalji's death defendant No. 1 was about 30 years old defendant Mo. 4 about 24 years old defendant No. 5 about 22 years Umedmal about 17 years old and plaintiff about 15 years old and the three sisters according to the evidence were aged approximately 20 9 and 7 respectively. There is no dispute about the fact that Vithalji and his sons formed a joint Hindu family and that joint family continued after his death. According to the plaintiff it continued till the date of the suit and according to defendant No. 1 it continued only upto 1925 when severance took place so far as he was concerned. The alternative plea made by defendant No. 1 at a later stage of the suit was that the severance took place in 1941 and that since 1925 or since 1941 as the case may be he being in exclusive possession of all the properties in the suit except the Gondal house which admittedly is in possession of defendant No. 5 the suit as regards the properties in his possession is barred by limitation.

(3.) That brings us to the next important question in the suit namely the question of limitation. This question does not require to be considered in respect of the Gondal immoveable property. In respect of the immoveable properties at Ahmedabad and Rajkot we have to consider whether or not they were benami and if they were so whether they came out of the funds belonging to all the brothers and if so how they should be dealt with. We shall consider that aspect later for the present the question of limitation may be dealt with in respect of the main two items in dispute namely the business of paper as a going concern and the assets of that business as existing on the date the severance took place that is to say as existing at the end of October 1941. The Article on which Mr. Mehta relies as one applicable on the question of limitation is Art. 120 of the Limitation Act 1908 Later on in his reply he also tried to rely on Art. 89 of the Limitation Act though he himself felt not very sure about it. On the other hand on behalf of the plaintiff and the contesting defendants reliance was placed on Art. 127 of the Limitation Act.