RAMCHANDRA MULCHAND Vs. BHAGWAN GOPAL

JUDGEMENT

(1.) THE four plaintiffs in the suit from which this appeal arises are brothers and sons of defendant No.2. THEy filed the suit for a declaration that the two mortgages dated June 16, 1922, and June 26, 1925, executed by defendant No.2 in favour of defendant No.1 were not binding on the plaintiffs' share in the property in suit. THE plaintiffs' case was that the property was ancestral property and the alienation was not made for legal necessity. THE trial Court held that plaintiffs Nos. 3 and 4 were born after the date of the alienation and, therefore, they could not challenge the alienation of their father. With regard to plaintiffs Nos. 1 and 2, it held that the alienation was bad and gave a declaration that the alienation was not binding on the one-half share of plaintiffs Nos. 1 and 2 in the suit property. THEre was an appeal to the learned Assistant Judge, and that appeal was dismissed. THEre were cross-objections filed by the plaintiffs urging that the plaintiffs' share was not one-half but two-thirds in the property in suit and the trial Court should have held that the mortgage was not binding on the two-thirds share. THE cross-objections were also dismissed.

(2.) BEFORE me Mr. B. G. Thakor for the appellant has only urged the question of limitation. The position with regard to limitation is this. Defendant No.1 filed a suit to enforce the two mortgages and in this suit a compromise decree was passed. Then defendant No.1 applied to execute the decree by filing a darlchast. It is urged by Mr. Thakor that it was open to the plaintiffs to challenge the alienations at the date when they were made, namely, June 16, 1922, and June 26, 1925, and limitation began to run from those two respective dates, and the suit having been filed on April 20, 1940, the plaintiffs' suit was out of time. Now it is true that it was open to the plaintiffs as coparceners to challenge the mortgages executed by their father, but they did not choose to do

(3.) MR. Chitale has also relied on a decision reported in Barahi Debi v. Debkamini Debt (1892) I. L. R. 20 Cal. 682. In that case it was held that the right of a widow to a share in lieu of maintenance only arises when there is a partition of the joint family estate in the sense that it ceases to exist as a joint estate. Hence upon a partition enforced by a stranger in respect of property which forms only one item of the joint estate, the widow is not entitled to such share, if notwithstanding such division, the main estate remains undivided. Now two or three things ought to be noticed in this ease. First of all, the parties were governed by the Dayabhaga and not by Mitakshara. Secondly, the alienee was not suing for partition of the whole of the joint family property but only for a specific share, and even, so the Court was at pains to observe that it was on the special facts of that case that it came to the conclusion that the widow was not entitled to a share. In my opinion that case is not of much assistance in deciding the quite different facts which I have before me.