SITARAM VINAYAK HASABNIS Vs. NARAYAN SHANKARRAO HASABNIS

JUDGEMENT

(1.) THE plaintiffs sued for the partition and separate possession of a share amounting to eight annas and ten and half pies in some properties known as the Shankar Khar and Shankar Wadi, and also for a declaration of their right to receive a similar share in half the revenues of the village of Sape. THEy also sued for an account of the recoveries made by defendant No.1, who admittedly has been in possession of these properties; and by a purshis they dated their claim to an account from the year 1927. THEy have been given a preliminary decree for partition of the Shankar Wadi and Shankar Khar and also' a declaration of their right to receive the assessment claimed of the village of Sape, and the preliminary decree ordered accounts to be taken of the plaintiffs' share in the income received by the defendants from the year 1927. THE Commissioner found a sum of Rs. 6,139-0-1 1/2 to be due to the plaintiffs on accounts, and by a final decree that sum was ordered to be paid by the defendants together with costs and future interest at six per cent. from the date of the suit on the principal sum of Rs. 6,139. THE defendants have appealed both against the preliminary decree (First Appeal 155 of 1940) and against the final decree (First Appeal 294 of 1940).

(2.) MOST of the defences raised to the suit have been abandoned in these appeals, and it is not necessary to do more than state the facts in very brief outline. It is not disputed that in 1862 three brothers, Trimbak, Ganesh, and Shankar, all sons of one Vinayak (the first two by his first wife and the last by his second wife) separated. The right of Shankar to a share of six annas and six pies was recognised, and Trimbak and Ganesh between them were given a share of nine annas and six pies. Some of the property was divided; but some of it was kept joint, including the property in the present suit. But it is not disputed that from that date the three brothers ceased to be members of a joint family and became tenants-in-common. Trimbak died in 1875, and on his son's death in 1879 no male member remained in his family. His widow Gangabai died in 1918. Ganesh died in 1871, and his widow adopted defendant No.1 in 1883. Plaintiff No.1 is the son of Shankar, who died in 1896; the other defendants Nos. 2, 3 and 4 are the sons of defendant No.1 and plaintiffs Nos. 2, 3 and 4 are the sons of plaintiff No.1. Defendants Nos. 5 and 6 are alienees.

(3.) IN support of the defence on this point two cases have been cited in which the Courts have applied the coparcenary rule to suits relating to the partition of property held in common. They are Chhotibibi v. Pachhabi (1892) P.J. 112 and Rajendra v. Brojendra. (1922) 37 C.L.J. 191 IN each of these cases the Court treated the coparcenary rule as generally applicable to suits for partition, and in the first of them (which was a suit between Mahomedans) the Court stated that (p. 117) The relief sought for in these suits is a partition of the shares of the two plaintiffs; and such relief can only be given if all persons interested in the ancestral property are parties to the two suits and if the whole ancestral property is also brought into suit. Neither, of these conditions is satisfied.