ASA NAND Vs. BALDEV RAJ

JUDGEMENT

(1.) BALDEV Raj, who is the applicant in revision No. 545 of 1972 and opposite party No. 1 in Civil Revision No. 531 of 1972, filed Civil Suit No. 39 of 1967 for partition, accounting and mesne profits. He alleged that there was a joint Hindu family, of which Nand Lal, his father, was the Karta. Nand Lal died in the year 1948 leaving behind vast properties. The said joint Hindu family was also carrying on business of the sale of books in the name of M/s. Universal Book Co. Nandlal, at the time of his death, left substantial cash and jewellery over and above the family business. It was out of the joint family fund and wealth left by Nandlal as well as out of the joint family business, a number of properties, which were mentioned in Schedule B of the plaint, were purchased. On these facts he asserted that he being a member of the joint family was entitled to receive 1/5th out of the entire properties. He subsequently amended his plaint and enhanced his claim from 1/5th to 9/40th, after the death of his mother.

(2.) ON 22-4-1969, the learned Civil Judge dismissed the application holding that the right of maintenance in plaintiff' favour would have arisen if admittedly the coparcenary property was in possession of the defendants and since the defendants did not possess any property admittedly belonging to the joint family, therefore, the plaintiff was not entitled for maintenance.

(3.) THIS revision came up for hearing before S. N. Katju, J. He found that the learned Civil Judge had committed an error in finding that there was no coparcenary property belonging to the joint family. He held that there was an item of the property, being house No. 110-A, Mohalla South Malaka, Allahabad, which, admittedly, belonged to the joint family. Accordingly, the learned Civil Judge was not right in rejecting the application for maintenance on the basis that since no joint Hindu family property belonged to the parties of the suit, therefore, an order of the payment of money on the application made by Baldev Raj could not be made. It appears from the judgment of the learned Single Judge that it was also emphasised on behalf of Baldev Raj that there was some cash which was admittedly coparcenary property. The High Court declined to go into that question at that stage and simply directed the trial court to consider the application afresh. In this order the Court had further directed that the trial court should find out as to whether there was any other admitted coparcenary property apart from house No. 110-A, South Malaka, Allahabad.