SHANKAR NATHU Vs. GANGARAM NATHU

JUDGEMENT

(1.) This is a first appeal from the decision of the learned Civil Judge (Senior Divi- sion) at Jalgaon who decreed the plaintiff's suit for partition.

(2.) One Nathu Halwai and his two sons Gangaram and Shankar were members of a joint and undivided Hindu family. Nathu had settled down at Jalgaon having migrated from Agra. He had made good and had acquired considerable immovable properties and had also established a confectionery and a money lending business. In the year 1922 he started a grocery business, putting forward his son Shankar as a partner along with an outsider Sakharam. That partnership business was started in the name of Shanker Sakharam. Sakharam continued as a partner until 7th June 1923, when he retired, and Shanker continued the grocery business thereafter by himself, Nathu in the meanwhile died in the year 1923 just before the dissolution of the partnership between Shanker and Sakharam. Shanker was more literate than his brother Gangaram and he continued to manage all the properties of the family. In the year 1924 he purchased an immovable property for a consideration of Rs. 2900. Two other immovable properties were purchased in the joint names of Gangaram and Shanker subsequently. The grocery shop, the confectionery business and the money lending business continued. Gangaram ultimately filed a suit being Special Regular Civil Suit No. 10 of 1944 against Shanker and his two sons Namdev and Devi for a partition of the joint family properties, Besides the immovable properties which were specified in Schedule A to the plaint, he claimed to have a share in the properties which were specified in Schedules B, C and D to the plaint, which consisted of the money lending business, ornaments and the outstandings of the confectionery business and the grocery shop. This suit of Gangaram was resisted by Shanker. He contended that in the year 1923 a partition bad already been effected by Nathu amongst his two sons. At that time Nathu had four immovable properties being Nos. 1, 2, 5 and 6 in the Schedule A to the plaint and certain gold. Shanker contended that in that partition the immovable properties Nos. 1, 2, 5 and 6 were given by Nathu to him and the gold weighing about 200 odd tolas was given to Gangaram. Shanker further contended that the grocery business was his own exclusive business, that the immovable property No. 7 in the Schedule A to the plaint had been purchased by him out of the income of the grocery business and that the said property No. 7 belonged absolutely to him. He admitted that immovable property No. 8 in Schedule A to the plaint was joint property. In regard to immovable properties Nos. 3 and 4, his contention was that they were no doubt purchased in the joint names of Gangaram and himself, but Gangaram was to get a half share in them provided he gave his share of the consideration monies paid for the purchase of those properties. Except, therefore, in these immovable properties No. 8 and NOS. 3 and 4 in Schedule A to the plaint, he denied that Gangaram had any interest in any other properties which were in his possession, and contended that Gangaram was not entitled to any share or interest in the same.

(3.) During the pendency of the suit Gangaram died leaving him surviving his widow Narayanibai. Narayanibai was brought on the record of the suit and she continued the same. On this, a further contention was taken by Shanker that the Suit could not be continued by Narayanibai because there was a custom in the family of the parties under which a widow was not entitled to a share in the properties and also because, even if the Hindu Women's Rights to Property Act, 1937 (NO. xVIII (18) of 1937) applied, she got a special estate created in her which was neither succession nor survivorship and, therefore, she was not entitled to be brought on the record of the suit as the heir and legal representative of the deceased Gangaram.