GANESH RAMCHANDRA THAKUR Vs. GOPAL LAKSHMAN THAKUR

JUDGEMENT

(1.) THESE three appeals arise out of two suits brought by one Ganesh Ramchandra and a third suit brought by the family of Laxman, who was Ramchandra's brother. Each suit was for a declaration of the right of the plaintiff to a half share in certain property alleged to belong to the family of which Ramchandra and Laxman were the two eldest members; and for a proper understanding of them it is necessary to set out the facts at some length.

(2.) RAMCHANDRA and Laxman went to Bombay from the Ratnagiri district more than fifty years ago and worked at the Mint; and though Laxman appears to have been the more able of the two and to have earned more money and had a better head for business, they both managed to save a certain amount of money, and they kept three joint accounts with three different banks in Bombay. Laxman, as the better business man of the two, was given a power-of-attorney by RAMCHANDRA; and it seems that the practice of the brothers was that when any transactions affecting both of them were entered into (and there were admittedly a number of such transactions,) the person who managed the transaction was Laxman but the transaction was conducted in the name of RAMCHANDRA, because he was the elder of the two. In 1910 Laxman retired and RAMCHANDRA also retired at about the same time. In 1914 a mortgage transaction was entered upon which is of importance in the present litigation. One Joshi borrowed Rs. 2,500 on the security of his land at Rahadgar. The money was actually paid by the hand of Laxman on behalf of the mortgagee, who is named as RAMCHANDRA; and although in the subsequent litigation RAMCHANDRA at one time claimed the entire mortgage as his, his son now says that he had no more than a share in it. In 1916 disputes arose between the brothers, and the power-of-attorney was cancelled. At some time in the same year a separation in interest admittedly occurred, though for some time longer the joint accounts continued. Towards the end of the year and after the separation had occurred Joshi borrowed Rs. 4,000 on the mortgage of his land at Shirgaon ; and this mortgage is in the name of Laxman alone. Between 1916 and 1918 Laxman advanced various sums to Joshi, and for a settlement of the amounts due between them the matter was referred to arbitration. . Without consulting RAMCHANDRA they included in the matters referred to arbitration the mortgage for Rs. 2,500, and a decree was passed in favour of Laxman against Joshi for an amount of Rs. 9,529 as due upon the mortgage for Rs. 2,500, the mortgage for Rs. 4,000, and the other loans advanced by Laxman. Under this award both the Rahadgar and the Shirgaon properties were charged. In 1920 RAMCHANDRA died. In March, 1922, Laxman filed a suit against Ganesh, son of RAMCHANDRA, for partition of all land in the possession of Ganesh RAMCHANDRA, and in that suit the mortgaged property was not included. Ganesh was not in possession of the mortgaged property, and he asked that all the property, both moveable and immoveable, including the property mortgaged for Rs. 2,500 and the award decree, should be dealt with in the suit. To this Laxman replied that the Shirgaon properties covered by the mortgage of Rs. 4,000 were his exclusively. In April, 1924, this suit was withdrawn with liberty to bring a fresh suit, because Laxman said that he was ill and was unable to continue giving evidence. Shortly after this Laxman filed a darkhast to recover a sum of Rs. 12,580 due under the award decree by sale of Joshi's property. The matter went to the Collector as Joshi was an agriculturist, and on hearing of it Ganesh RAMCHANDRA put in an application to the Mamlatdar asking for the sale of the property to be made subject to his father's mortgage of Rs. 2,500. It is to be noted that he did not ask for it to be subject to any share that he might have in the mortgage of Rs. 4,000. This application was dismissed by the Mamlatdar in June, 1925. Two months later Ganesh RAMCHANDRA filed a suit for a declaration of his sole rights in the mortgage of Rs. 2,500. But in 1926, while this suit was pending. Laxman came to an arrangement with Joshi under which the Shirgaon property that had been mortgaged for Rs. 4,000 was sold to Laxman for Rs. 12,000, and the Rahadgar property which was subject to the mortgage of Rs. 2,500 was released. Thereupon Ganesh RAMCHANDRA withdrew his suit with liberty to bring a fresh suit. Acting under the liberty given to him to bring a fresh suit, he brought suit No.154 of 1934' for a declaration that he was entitled to a half share in the Shirgaon property subject to the mortgage of Rs. 4,000, and for partition or in the alternative joint possession of that property. On the same day he filed another suit (No.155 of 1934) for a share in a house and some land which had been bought by Laxman on his retirement in 1910. In both these suits an objection was taken on the ground that all the property available for partition was not included in the suit, and in the case of suit No.155 a further objection was taken that it was barred by Order II, Rule 2, of the Civil Procedure Code, 1908, by reason of the fact that suit No.154 might have included the property which was the subject of suit No.155 but had not included it. Suit No.154 was dismissed on the ground that partial partition was inadmissible. Suit No.155 was dismissed for the same reason and for the further reason that it was barred by Order II, Rule2. The decree in suit No.154 was taken in appeal to the High Court and suit No.155, which was a second class suit though tried in fact by the First Class Subordinate Judge, went in appeal to the District Court. The High Court held that although suit No.154 might not be able to result in a decree for partial partition, nevertheless the claim in the alternative was for joint possession, and it was held that the plaintiff was entitled to joint possession if the property belonged to the family, and in any event the plaintiff was entitled to a declaration of his share in the property, if it belonged to the joint family and it was not possible to give the plaintiff joint possession. It may be mentioned that neither the plaint nor the written statement of this suit referred to any separation of interest between the brothers in 1916, and it does not seem that the fact of the separation in 1916 was brought to the notice of the High Court. Suit No.154 was then referred back to the trial Court for a decision on the merits.

(3.) EVEN assuming this to be an order under the Civil Procedure Code, it does not seem to be a decision upon a claim. It does not say that the applicant is not entitled to the right which he claims in respect to the property. It merely says that his request to have the sale made subject to his mortgage cannot be granted, and the reason for the refusal is certainly not any decision that Ganesh Ramchandra had no concern with the mortgage of Rs. 2,500. Thus there is no bar to the suit under Article 11, and that is the only point of limitation that was raised against Ganesh Ramchandra in the suit.